1978

PATSON MWENGWE v THE PEOPLE (1978) Z.R. 1 (S.C.)

SUPREME COURT
SILUNGWE,C.J., CHOMBA AND BRUCE-LYLE, JJ.S.
14TH MARCH,1978
(S.C.Z. JUDGMENT NO. 14 OF 1978)

Flynote

Criminal law and procedure - Appeal - Whether High Court has power to alter conviction on
appeal against sentence only.
Criminal law and procedure - Appeal - Powers of Supreme Court to alter conviction on any
Appeal.

Headnote

The appellant was convicted of breaking into a school house with intent to commit a felony
contrary to s. 303 of the Penal Code and sentenced to three years' imprisonment. He
appealed to the High Court against sentence only. That court observed that on the facts
what was broken into was a hostel and that the appellant should have been convicted of
breaking into a dwelling house, and substituted a conviction under s. 301 of the Penal Code.

Held:
(i) On an appeal from the subordinate court against sentence only the High Court
has no jurisdiction to alter the conviction.

(ii) The Supreme Court has wider powers than those of the High Court in matters
affecting the determination of criminal appeals, and has power under s. 15
(3) of the Supreme Court of Zambia Act, 1973, to interfere with conviction
whether the appeal is against conviction or sentence only.

Legislation referred to:

Penal Code, Cap. 146, ss. 272, 301, 303.

Criminal Procedure Code, Cap. 160, ss. 187, 327.
Supreme Court of Zambia Act, 1973, s. 15.

For the appellant: In person.

For the respondent: S.C. Heron, Assistant Senior State Advocate.

Judgment

CHOMBA, J.S.: delivered the judgment of the court.

The appellant was sentenced to three years' imprisonment with hard labour in consequence
of being convicted of the offence of breaking into a school house with intent to commit a
felony contrary to s. 303 (a) of the Penal Code. He appeals against sentence only.

When the appellant was appearing in the court below, having appealed against sentence
only, the learned appeal commissioner quite correctly found that the facts on which the
appellant was convicted of the offence as charged, revealed that in fact a hostel was broken
into and property stolen therefrom. He consequently held that the appellant ought to have
been convicted of the offence of breaking into a dwelling house and committing an offence
therein contrary to s. 301 (a) of the Penal Code. Having so held he then referred to s. 187
of the Criminal Procedure Code which states:

"187. When a person is charged with an offence under one of sections three hundred
and one to three hundred and five of the Penal Code and the court is of opinion that he is
not guilty of that offence but that he is guilty of any other offence under another of the said
sections, he may be convicted of that other offence although he was not charged with it."

He then proceeded to state:

"Although the Appellant is only appealing against sentence, sitting as an Appellate

Judge, I am empowered under Section 327 of the Criminal Procedure Code, if after perusing
the record and hearing such additional argument, I consider that there is ground to vary the
decision of the trial court to do so.
Section 327 (1) (b) specifically empowers an appellate court even if there is an
appeal against sentence only to quash the sentence imposed at the trial and pass such
sentence warranted in law. Such sentence may be more severe or less severe. I am of
such opinion that the trial court, erred in convicting the appellant for an offence which on
the facts are of this offence. I therefore quash that conviction, but as I have said in the
exercise of the powers conferred upon me by the Criminal Procedure Code I substitute the
offence under s. 301 (a) of the Penal Code and convict the Appellant of that offence."

Section 327 sub-s. (1) of the Criminal Procedure Code provides as follows:

"327. (1) The appellate court, after perusing the documents forwarded to it, if the
appeal is being heard summarily, or after hearing the appellant or his advocate, if he
appears, and the prosecutor, if he appears, may, if it considers that there is no sufficient
ground for interfering, dismiss the appeal, or may :

(a) on an appeal from a conviction;

(i) reverse the finding and sentence, and acquit or discharge the accused,
or order him to be retried by a subordinate court of competent
jurisdiction or by the High Court; or

(ii) alter the finding, maintaining the sentence, or, with or without altering
the finding, reduce or increase the sentence; or

(iii) with or without such reduction or increase, and with or without altering
the finding, alter the nature of the sentence;

(b) on an appeal against sentence, quash the sentence passed at the trial, and
pass such other sentence warranted in law (whether more or less severe) in
substitution therefore as it thinks ought to have been passed, and, in any
other case, dismiss the appeal;

(c) on an appeal from any other order, alter or reverse such order;
 and, in any case, may make any amendment or any consequential or
incidental order that may appear just and proper."

On correct reading of s. 327 (1) of the Criminal Procedure Code, it is

evident that it deals with three distinct situations, viz.-

(a) when there is an appeal from a conviction;

(b) when there is an appeal against sentence;
(c) when there is an appeal from any other order.

In the last two situations the power granted to the High Court in its appellate jurisdiction is
respectively to interfere with the sentence either way and to alter or reverse the order from
which the appeal is made. In neither of these cases is power granted to alter a finding. In
situation (a) the power is given to do various things, including interfering with the
conviction appealed from and/or altering the sentence by either enhancing or reducing it.
The power to dismiss the appeal is granted in all the above-mentioned situations.

It will be seen from this clarification that the learned commissioner acted ultra vires his
jurisdiction by purporting to alter the conviction when the appeal before him was only
against sentence. What he did was therefore a nullity and did not affect the validity of the
wrong conviction by the trial court.

This court has wider powers than those of the High Court in matters affecting the
determination of criminal appeals. That this is so is evidenced by s. 15 (3) of the Supreme
Court of Zambia Act No. 41 of 1973 (as amended by Act No.17 of 1976) which states:

"(3) On any appeal, whether against conviction or sentence, the Court may
substitute a judgment of guilty of such other offence as the trial court could have entered,
and, in the case of an appeal from a judgment of the High Court in its appellate
jurisdiction, the Court shall in addition have power to restore the conviction of the trial
court."

As can be seen from that subsection the Supreme Court is given power to interfere with
conviction whether the appeal is against conviction or sentence only. We are in agreement
with the learned appeal commissioner that the facts in this case reveal that the appellant
broke into a dwelling house from which he consequently stole. He should therefore have
been convicted under s.301 (a) of the Penal Code notwithstanding that he was charged with
an offence under s. 303 (a) of that Code. The power to find him guilty under the former
section is, of course, granted by s. 187 of the Criminal Procedure Code. We consequently,
quash the conviction of the trial court and substitute therefore the offence of housebreaking
and theft contrary to ss. 301 (a) and 272 of the Penal Code.

Having altered the conviction we are at large as regards what sentence to impose in this
case. The offence of which the appellant has now been convicted carries a maximum of
seven years' imprisonment. The appellant has eight previous convictions, the majority of
which relate to offences of dishonesty. By reason of his persistent commission of offences,
he has forfeited a right to leniency and in the circumstances we think that a proper sentence
to impose is one of three years' imprisonment with hard labour. We so impose that sentence
and it is to take effect from 20th May 1977.

The appeal lacks merit and it is dismissed.

Appeal dismissed

THE PEOPLE v PAUL NKHOMA (1978) Z.R. 4 (H.C.)

HIGH COURT
M.S.NGULUBE - HIGH COURT COMMISSIONER
13TH FEBRUARY,1978
HP/118/1977

Flynote

Criminal law and procedure - Bigamy - Marriage under customary law - Whether subsequent
marriage under Marriage Act bigamous.
Criminal law and procedure - Bigamy - Defence of mistake of fact - Whether available.
Customary law - Bigamy - Marriage under customary law - Whether subsequent marriage
under the Marriage
Act bigamous.

Headnote

The accused, who was charged with bigamy, had gone through a ceremony of marriage
under the Marriage Act when his first wife, whom he had married under customary law, was
still living. In his defence he submitted that he had terminated his first customary marriage
by a letter and he believed that the marriage had ended. The first marriage had not been
validly dissolved.

Held:
(i) Bigamy is committed if a person whose spouse is still living goes through a
ceremony of marriage with another which, but for the earlier subsisting marriage,
would have resulted in a valid marriage.

(ii) A customary marriage is a valid marriage for the purposes of considering a

second "Marriage Act" marriage as bigamous.

(iii) (Per curiam) Mistake of fact is a defence to bigamy if, at the time of the second
marriage, the offending spouse reasonably believed that his earlier marriage had
been dissolved.

[Editor's Note. The court's attention was apparently not drawn to The People v Katongo
(1974) Z.R. 290, in which Care, J., held that a customary union is not capable of being an
"earlier subsisting marriage" which renders a subsequent "Marriage Act" marriage
bigamous.]

Cases cited:

(1) People v Frank Chitambala (1969) Z.R.142.

(2) R. v Gould [1968] 1 All E.R. 849.

Legislation referred to:

Penal Code, Cap. 146, s. 166.
Marriage Act, Cap. 211, s. 38.

For the accused: C.K. Banda.

For the State: Miss G.Moruthane.

Judgment

NGULUBE, COMMISSIONER:

The accused is charged with bigamy, contrary to s. 166 of the Penal Code. Particulars allege
that between 22nd March and 13th April, 1976, he went through a ceremony of marriage to
Juliet Kamanga when his first wife Dorothy Mulenga was still living.

It is interesting to note that s. 38 of the Marriage Act, Cap. 211, also has a similar offence
to bigamy.

The onus is always on the prosecution to establish the case beyond all reasonable doubt.
There is no burden on the accused to establish his innocence and if upon consideration of
the whole of the evidence adduced I am left with a reasonable doubt, the accused is entitled
to an acquittal.

Under s. 166 of the Penal Code, the offence of bigamy is committed if a person whose
spouse is still living goes through a ceremony of marriage with another which, but for the
earlier subsisting marriage, would have resulted in a valid marriage. If the earlier marriage
has been declared void by a competent court or if the earlier spouse has not been heard of
as being still alive for continuous period of at least seven years before the second marriage,
these factors constitute a defence. It goes without saying also that if the earlier marriage
has been validly dissolved before the second marriage, the offence cannot be committed.
Mistake of fact is also a defence if at the time of the second marriage, the offending spouse
reasonably believed that his earlier marriage had been validly dissolved. This defence was
recognised and considered by Forster, A.J., in the case of the People v Frank Chitambala (1)
Forster, A.J., had followed the principle which was established by the case of R. v Gould (2).

The offence of bigamy is one example of certain laws which are some times totally strange
once transported from England to Zambia and once they are applied to indigenous
Zambians. In England polygamy is a totally unacceptable state of affairs. There, the only
marriage their law recognises is a contract for the voluntary union of one man and one
woman to the exclusion of all others, until that union is terminated by death, or is dissolved
or annulled by statute or by decree of a competent tribunal. It is therefore an offence to
have a plurality of wives.

The English law on bigamy was brought to this country with the obvious intention that it
should regulate the marital affairs of the white immigrants. It was for this reason that up
until 1963, this law did not apply to indigenous Zambians who were not at liberty to marry
under the Marriage Act. This law did not apply to the indigenous Zambian for the simple
reason that polygamy was a well established institution which was governed by the various
customs or customary laws of the parties concerned. To this day, a plurality of wives is still
lawful provided that the person concerned steers well clear of the Marriage Act and those
Christian Churches which recognise monogamy and monogamy only.
From 1963, the law was amended to allow those indigenous Zambians who so wished to
contract a one man and one woman type of marriage. In terms of s. 166 of the Penal Code,
bigamy is committed whenever the second marriage is void by reason of a subsisting first
marriage. In the premises bigamy can be committed where a marriage under the Act takes
place when another marriage under the Act is subsisting, as in the Chitambala case, or
where a marriage under the Act takes place where a customary first marriage is still
subsisting. The latter position is so because the marriage under the Act will be void since
there would result two wives, which that law does not accept.

It had exercised my mind whether it could be argued that since the English law does not
recognise polygamy, a potentially polygamous customary first marriage could therefore not
be recognised as a valid subsisting marriage for the purpose of the law relating to the
offence of bigamy. This view may very well fit in with s. 38 of the Marriage Act which inapt
or may not have been intended to draw a distinction between bigamy as would be
committed by an English man in England and an attempt by anyone in Zambia, especially
the white immigrant, to avail himself of the advantages offered by customary law. It is for
this reason that I had stated at the beginning of this judgment that it is interesting to
compare the two sections, that is s. 166 of the Penal Code and s. 38 of the Marriage Act. In
my view, a customary marriage is equally a valid marriage for purposes of considering
second "Marriage Act" marriage as bigamous.

This much being premised, I now turn to consider the case in hand.

The facts of this case are not really in dispute and for this reason, I do not propose to recite
each witness's evidence separately. The evidence is on record and indeed I could even
simply consider what the accused himself told this court.

There is no dispute that the accused had lawfully married Dorothy in 1971 under the
customary law. That marriage was consummated. Two children were born before the
separation and one child since then. On 14th February, 1976, the accused and his wife
Dorothy had a difference where she refused to go to his village to look after his mother.
Both parties declared that if the other insisted on their respective demand and refusal, that
was the end of the marriage. Dorothy duly packed her belongings and went to Mufulira to
live with her mother. In the meantime the accused went through a ceremony of marriage
under the Act to Juliet Kamanga. The second marriage was an unhappy fiasco which lasted
only two months during which time Juliet found out about the first marriage and reported
the matter to the police.

On 30th June, 1976 a few days after Juliet had left the accused, the accused appeared
before the local court at Mufulira where Dorothy had summoned him for divorce. The local
court refused to grant a divorce and thereafter the accused resumed living with Dorothy, his
first wife.

Clearly the offence of bigamy was committed unless the accused can avail himself of one of
the defences I have already referred to. In this cases the defence advanced were that the
marriage to Dorothy had been validly dissolved by mutual agreement on 13th February,
1976, or alternatively that the accused was labouring under an honest mistake of fact upon
a reasonable belief that at the time of the second marriage to Juliet, he had already
divorced Dorothy.

According to Dorothy's mother, her daughter and the accused were married under Bemba
customs. A certificate of that customary marriage had been obtained from the local court.
According to her as well as to Dorothy, the marriage could only be dissolved by the
traditional refund of the marriage fees which had been paid and by going to the local court
with whom the marriage was registered. The local court in fact refused to grant divorce and
the parties resumed cohabitation. I have no hesitation in accepting the evidence that the
marriage to Dorothy was never validly dissolved. It could not be dissolved verbally by
mutual agreement. That bond of marriage was tied by customary law and that same law
must untie the bond. There was no valid oral divorce and that part of the defence falls
away. It now remains to consider whether the accused laboured under a mistake of fact
upon a reasonable belief that he had divorced Dorothy.

In his evidence in chief, the accused told the court that when he chased away Dorothy on
14th February, 1976, he told her that their marriage was ended and that he would write a
letter to that effect to her mother. Thereafter, he was waiting patiently to hear from
Mufulira confirmation that the marriage was accepted as having ended. Apparently, no
confirmation came and on that basis, he believed himself to be free to remarry and married
Juliet. Under cross-examination, however, the accused admitted that he was aware that the
divorce would have to be processed through the local court. He further stated that this was
the reason why he had withdrawn the certificate of customary marriage from his superior
officer who was keeping it and gave it to Dorothy. The accused said that he had also written
letter of divorce inviting Dorothy to use it as evidence to obtain a divorce in the local court.
She in fact sued for divorce but as already stated, divorce was refused. According to the
accused, he firmly believed that the marriage had ended in fact and that the local court
proceedings would merely formalise the existing divorce. He further said that it was only
when the local court refused to grant the divorce that he realised he was still married to
Dorothy.

Going by the accused's own evidence, it is obvious that he knew at all times that his
marriage to Dorothy subsisted until a local court decree be obtained. At best, what the
accused called a verbal divorce by mutual agreement was or must have been known by him
to be, at the time, no more than a separation and breakdown of marriage which he
undoubtedly thought meant the de facto and irreversible end of the marriage then merely
requiring the formality of divorce proceedings in the local court to put a legal end to it.
Legally, the accused remained married and is still married to Dorothy. In fact, the parties
resumed cohabitation.

I am satisfied that on 22nd March, 1976, when the accused gave notice of marriage to Juliet
right up until 13th April, 1976, when he purported to marry her, and indeed thereafter and
at all times, the accused knew that he was still married to Dorothy. PW3, the marriage
officer, gave the accused all the necessary warnings and obtained an affidavit from the
accused and yet the accused still held himself out to be an unmarried man. I do not accept
that the accused held any reasonable belief that he had divorced Dorothy. Indeed if the
accused held such a belief, and I have said he did not, nevertheless a belief of that sort in
the circumstances narrated by the accused himself would be totally mala fides and
unreasonable. The second part of the defence also fails.

The accused chose to marry the second wife under the Marriage Act. He may or may not
have fully realised the consequences. He thought, as he stated, that he would merely be
enabling his wives to have certificates to entitle them to be permitted to live in the Army
Barracks with him. Those who do not want to be involved in this type of case should stick to
the customary law marriages where, fortunately, man may yet marry as many wives as his
heart desires. Alongside polygamy, we have bigamy which it was the misfortune of the
accused, who is an indigenous Zambian, to have committed.
A villager in some remote part of Zambia may be astonished to hear that a Zambian man
was punished for marrying two women but as I have said those who adopt the English law
will be dealt with accordingly.

I am therefore satisfied that the prosecution has proved its case beyond all reasonable
doubt. The accused is found guilty as charged and convicted accordingly.

Accused convicted

GRAND EDDY KNOWLES v OHAN TRANSPORT LIMITED (1978) Z.R. 8 (H.C.)

HIGH COURT
DARE, COMMISSIONER
29TH MARCH, 1978
(1976/HK/268)

Flynote

Civil procedure - Service of writ on company - Mode of - Necessity for strict proof of service.
Company - Service of writ at registered office - Mode of - Necessity for strict proof of
service.

Headnote

The plaintiff issued a writ against the defendant, a limited company. The certificate of
service and affidavit of service used words appropriate to personal service on an individual;
they did not indicate that a copy of the writ had been left at the registered office of the
defendant company.

On appeal from a District Registrar's order that the certificate of service did not show that
the writ was correctly served on the defendant company.

Held:
(i) Where postal service is not used service must be proved by showing that it was
effected by leaving a copy of the writ at the registered office of the defendant
company.

(ii) Strict proof of lawful service is a necessary prerequisite to entry of a proper

interlocutory judgment in default of appearance.

Legislation referred to:

Companies Act, 1948 (England), s. 437 (1).
Companies Act, Cap. 686, s. 125.
Supreme Court Rules (England) O. 13/1/2/ (4), 13/9/10.

For the plaintiff: J. Mukumbi, Ellis and Co.

For the defendant: S. S. Ezugha, S. S. Ezugha and Co. 10

Judgment
DARE, COMMISSIONER, in the portion of the judgment relevant to this report said:

This is an appeal against an order of the District Registrar setting aside a default judgment
entered against the defendant on the 28th September, 1976.

The plaintiff's first ground of appeal is that the learned District Registrar was wrong in
holding that the certificate of service did not show that the writ was rightly served on the
defendant company.

The method of service on a company are set out in s. 125 of the Companies Act, 1968. In
this case the postal method was not used. The essential element of the other method is that
a copy of the writ must be left at the registered office of the company. The wording of s.
125 of our Companies Act is sufficiently similar to the wording of s. 437 (1) of the English
Companies Act 1948 (1) that the relevant portions of the English Rules of the Supreme
Court may be taken into account. The notes to O. 65/3/4 R. S.C . (6) make it quite clear
that the affidavit of service need not show to whom the process server delivered a copy of a
writ to a defendant company or with whom he left it but must show it was left at the
registered office. It is in my view, fundamental to compliance with the notes to R.S.C.
O.13/1/2 para. 4 (5) that service must be proved by showing that, in the circumstances of
this case, service was effected by leaving a copy of the writ at the registered office of the
defendant company. Those words "by leaving" are used in s. 125 of the Companies Act (2)
and in s. 437 (1) of the English Companies Act 1948 (1). Those same words are also used in
the appropriate alternative No. 2 of our High Court Civil Form 14 and, more significantly, in
our High Court Civil Form 15. They also appear in the relevant specimen Affidavit of Service
in Chitty's Queens Bench Forms. They do not appear in the Affidavit of Service by Mr M. M.
C. Sokoni in this case. In fact that Affidavit of Service appears to follow Form 11 of our
Subordinate Courts (Civil Jurisdiction) Rules, First Schedule.

I find myself unable to agree with counsel for the plaintiff on this point. He says the
certificate of service shows that a copy of the writ was left at the registered office of the
defendant. The endorsement of service on the original writ does not say that; it merely says
"This writ was served by me at Denton Palmer, R L. Patel and Co., 65 Vitanda Street, Ndola
on the defendant's registered office on the 18th day of August, 1976". The relevant portions
of the Affidavit of Service by Mr Sokoni on the court file read as follows:

"That I did on the 18th day of August, 1976, at Denton Palmer, R L. Patel and Co.,
65 Vitanda Street, Ndola, the Defendant's Registered Office personally serve the within
named Defendant . . .with a true copy of the writ of summons in this action... and which
was dated the 3rd of August, 1976."

There is no question of "by leaving" a copy at the registered office.

The affidavit dated 2nd October, 1976, by Mr H. K. Smallwood, a senior and very
experienced legal practitioner, discloses that, immediately after he was instructed and
ascertained that Ellis and Company, Kitwe, acted for the plaintiff, he spoke to their office by
telephone and was told where the writ was alleged to have been served and thereafter
personally attended upon Mr Ramanlal Laxman Patel, the owner of the firm of accountants
in Vitanda Street (formally Second Street), Ndola. Mr Smallwood swore "He told me that he
himself did not know whether the writ had been served there or not, that it could have been
so served but that it had not been passed to the defendant company as he had nothing on
his file about the writ." I am left with grave doubts about the proper, lawful service of the
writ.

Mr Mukumbi told me that to the best of his knowledge, Mr Sokoni, the articled clerk who
swore the Affidavit of Service, is still available. No explanatory supplemental affidavit by
him on this vital point has been filed. Strict proof of lawful service is a necessary
prerequisite to entry of proper interlocutory judgment in default of appearance R S.C. O.
13/1/2 (4). I am not satisfied that the entry of judgment was justified in this case. I find
that it was irregularly entered.

Appeal dismissed

ZAMBIA PUBLISHING COMPANY LIMITED v A. ZALOUMIS AND K. MATHIS (1978)

Z.R. 10 (S.C.)

SUPREME COURT
BARON, D.C.J., CHOMBA AND BRUCE-LYLE, .JJ.S.
2ND AND 17TH MARCH, 1978
(S.C.Z. JUDGMENT NO. 10 OF 1978)

Flynote

Tort - Defamation - Evidence - Document on which defamatory article based - Defendant

seeking to introduce document to mitigate damages - Plaintiff raising no objection -
Whether document admissible through author of defamatory article.
Tort - Defamation - Evidence - Whether court may take into account whole defamatory
document though only portions pleaded.
Tort - Defamation - Damages - Matters in aggravation of - Whether necessary to plead.
Tort - Defamation - Evidence - Witnesses giving evidence as to meaning attributed to
libel - Whether admissible.

Headnote

The respondents (the plaintiffs below) were each awarded a sum of K10,000 as damages for
libel. The libel appeared in an article in a newspaper published by the appellant (the
respondent below), the theme of which was an allegation that the management of Zambia
Airways discriminated against black Zambians. In the course of the article the plaintiffs were
named and referred to as men who "were not good academic students; they did not do well
as expected but were unquestionably qualified by Zambia Airways . . .".

The defendant pleaded justification and fair comment but in the Supreme Court no attempt
was made to justify the libel. The appeal was argued on two grounds only, both directed to
the quantum of damages: (1) that the judge erred in declining to receive in evidence a
document on which the article was based (the Simbotwe report); and (2) that the judge
erred in taking into account the alleged racialistic tone of the article when this factor had
not been pleaded.

In the course of the trial evidence was led from witnesses who deposed to the meaning they
attributed to the libel.

Held:
 (i) The Simbotwe report could not have been used to support the defence of
justification and was relevant only on the issue of quantum as showing that the
article was based on that report.

(ii) Since the purpose of the report was simply to prove that the author of the article
relied on it for his facts and did not invent the allegations, and particularly since
counsel for the plaintiffs did not object, the report could have been produced by
the author of the article.

(iii) The court may take into consideration the whole of a defamatory document even
though only part of it is set out in the statement of claim. Blackburn v Blackburn
(1) followed.

(iv) A plaintiff need not allege matters on which he will rely in aggravation of
damages. (Per curiam) Evidence of witnesses who depose to the meaning they
attribute to a libel is irrelevant and therefore inadmissible.

Dictum of Baron, D.C.J., in Zambia Publishing Company Limited v Kapwepwe (2) cited.

Cases cited:
(1) Blackburn v Blackburn (1827) 3 C. & P. 158.
(2) Zambia Publishing Company Limited v Kapwepwe (1974) Z.R. 294. 45

For the appellant: H. H. Ndhlovu, Jaques & Partners.

For the respondents: A. R. Lawrence, Solly Patel Hamir & Lawrence.

Judgment

BARON, D.C.J.:

This is an appeal by the defendant in the court below, to whom I will continue to refer as
the defendant, against a judgment of the High Court awarding each of the respondents, the
plaintiffs below, a sum of K10,000 as damages for libel.

The libel appeared in an article in the Zambia Daily Mail on the 21st November, 1974, the
theme of which was an allegation that the management of Zambia Airways discriminated
against black Zambians. The statement of claim pleads the following:

"3. In the edition of the Zambia Daily Mail published by the Defendant on the 21st
day of November 1974 there appeared on Page Four thereon an article making reference to
the two Plaintiffs which article contained (inter alia) the following passages: 'Take the
1972-73 group of young Zambians which was sent to Perth for training. Mr M. Chimbelu
passed all his papers while at Perth but on the arrival was grounded . . . He is now with
Zambia Flying Doctor Services. Mr Mbilika also passed his papers well. But as the
day-follows-the-night procedure, he, too, was finally grounded. But two other men of
different nationalities are today second flying officers with Zambia Airways . . .

The report also reveals that a Mr Zaloumis and K. Mathias were not good
academic students. They did not do well as expected but were unquestionably qualified by
Zambia Airways . . . '
4. By their natural and ordinary meaning the said words meant that the Plaintiffs
were failures and unfit to be pilots for Zambia Airways."

The learned judge held that the offending passage pleaded in para. 3 in the statement of
claim referred to the plaintiffs as those who "were not good academic students who did
not do well as expected but were unquestionably qualified by Zambia Airways". He further
held that the imputations and implications arising from the words pleaded were that the two
plaintiffs were unfit to be pilots and that in consequence they had been seriously injured in
their character and profession as pilots.

The defendant pleaded justification and fair comment, but in this court no attempt was
made to justify the libel. The appeal was argued on two grounds only, both directed to the
quantum of damages: first, that the learned judge erred in declining to receive in evidence
a document known as the Simbotwe report, on which the article in question was based;
and second, that the learned judge erred in taking into account the alleged racialistic tone of
the article when this factor had not been pleaded.

The writer of the article gave evidence. He told the court that his article was a criticism of
the policy and actions of Zambia Airways and was in no way directed at the plaintiffs. I have
no reason whatever to doubt his evidence in this regard nor his evidence that the plaintiffs
were quite unknown to him. I accept-and indeed the article itself seems to me to make this
clear-that the writer's intention was to expose what he described as a scandal in Zambia
Airways, and that he mentioned the plaintiffs' names purely in the course of the
development of his theme. This, however, cannot in my view assist the defendant. Even if
the author of the article had developed his theme without mentioning the actual names of
people who were accepted "unquestionably", individual pilots may have had a cause of
action if they could have shown that they were identifiable as members of the class; but
here the author went further and named two men, and implied that they did not do well at
Perth but were accepted by Zambia Airways as pilots without their abilities being
questioned, as the abilities of others had been questioned. I will comment on the
seriousness of this libel when I turn to consider the quantum of damages.

The defendant; has argued in this court that the learned judge should have received the
Simbotwe report in evidence. However, as Mr Ndhlovu very properly agreed, this report
could not have been used to support the defence of justification and was relevant only on
the issue of quantum as showing that the article was based on that report. He argued
further that the learned judge specifically held that the failure of the defendant to produce
the report was aggravating conduct. In my view this aspect of Mr Ndhlovu's argument has
force; the learned judge appears to have taken the view that the only person capable of
producing the report was the chairman of the commission in question, but it seems to me
that since the purpose of the report was simply to prove that the author of the article relied
on it for his facts and did not invent the allegations, and particularly since counsel for the
plaintiffs did not object, the report could have been produced by the author of the article.

I turn then to the main ground of appeal, namely, that the learned judge erred in having
regard to what he described as the racialistic tone of the article when this had not been
pleaded. Mr Lawrence, on behalf of the plaintiffs, submitted that the learned trial judge was
correct in taking the whole article into account when assessing damages, and that the
plaintiffs were not required to allege matters on which they intended to rely in aggravation
of damages. Both these submissions are clearly supported by authority. Thus Gatley on
Libel and Slander, 7th edition, in note 16, on page 557 refers to Blackburn v Blackburn (1)
as authority for the proposition that:
 "The jury may take into consideration the whole defamatory document even though
only part of it is set out in the statement of the claim."

Blackburn v Blackburn (1) is one hundred and fifty years old but I am not aware that the
proposition has ever been doubted. Mr Lawrence's second submission is once again
supported by Gatley, where the learned author says at para. 997:

"The plaintiff need not allege matters on which he will rely in aggravation of
damages."

The learned trial judge held that the failure to call the necessary witness for the purpose of
introducing the Simbotwe report in evidence was aggravating conduct on the part of the
defendant. I have already indicated my view that in this regard the learned trial judge
erred. It Is impossible to estimate to what extent this factor influenced the learned judge in
his assessment of damages, and consequently this court is at large as to quantum. I
therefore approach the matter by considering how much I would have awarded each of the
plaintiffs had I been sitting as the trial judge.

I regard the libel as intrinsically very serious. The plaintiffs were depicted as men who were
incompetent to function as airline pilots. Nothing can be more serious than to libel a man in
his profession, particularly a highly specialised profession. Although no attempt was made in
this court to justify the libel, in view of its serious character it is not out of place for me to
say that on the face of the record it was totally without foundation. Each of the plaintiffs had
failed one written paper at the first attempt in Perth; apart from that they had passed all
their tests, i.e. ground tests, examination papers, and flying tests. After their return to
Zambia they had taken more advanced courses and passed. On the evidence before the trial
court I would described the records of both plaintiffs as very good.

The learned judge regarded the racialistic tone of the article as an aggravating feature. I am
in entire agreement. The policy and philosophy of the Government and the people of
Zambia is non-racial, and an allegation of racialism can have serious consequences for the
person against whom it is made; if a man chooses to attack an institution like Zambia
Airways on the basis that they are indulging in racial discrimination it behoves him to ensure
that his allegation is well-founded. The record does not support the allegation, and I regard
this as an aggravating factor when considering the damages to which the plaintiffs, used as
illustrations of the author's theme, are entitled.

As I have said, I cannot estimate to what extent the learned judge was influenced by his
approach to the Simbotwe report, but looking at the case as a whole and taking into
account only the two factors on which I have elaborated, namely, the seriousness of the
libel and the context in which it was published, I am satisfied that I would have awarded the
same round figure of K10,000 as compensatory damages to each of the plaintiffs. I would
therefore dismiss this appeal.

There is one matter on which I think it may be helpful to comment. Evidence was led on
behalf of the plaintiffs as to the reaction of certain members of the public, including
passengers on Zambia Airways aircraft, to the libel; evidence was also led from witnesses
who deposed to the meaning they attributed to the libel. The former evidence was relevant
on the issue of damages, but the latter was irrelevant and therefore inadmissible. I repeat
what I said in Zambia Publishing Co. Ltd v Kapwepwe (2) at p. 301:

"Where words are alleged to be defamatory in their ordinary meaning a plaintiff

needs only to prove that they were published; while if words are alleged to bear a
defamatory innuendo it is necessary to prove no more than the extrinsic facts known to one
or more of the persons to whom the words were published, which would cause the
words to convey the defamatory imputation. In neither case is it relevant for the court to
hear what a witness understood by the allegedly defamatory statement."

Judgment

CHOMBA, J.S.: I concur.

Judgment

BRUCE-LYLE,J.S: I also concur.

Judgment

BARON,D.C.J.: The appeal is dismissed with costs.

Appeal dismissed

SIMON KAPWEPWE v ZAMBIA PUBLISHING COMPANY LIMITED (1978) Z.R. 15

(S.C.)

SUPREME COURT
BARON, D.C.J., GARDNER AND BRUCE-LYLE, JJ.S.
17TH JANUARY, AND 2ND MARCH ,1978
(S.C.Z. JUDGMENT NO. 7 OF 1978)

Flynote

Tort - Defamation - Damages - Separate actions in respect of similar libels - Proper

approach.
Tort - Defamation - Damages - compensatory damages - Assessment of where defendant's
conduct is in contumelious disregard of plaintiff's rights.
Tort - Defamation - Damages - Aggravating conduct - What is.
Damages - Exemplary damages - Means of defendant.

Headnote

The appellant (the plaintiff) was awarded damages of K6,000 against the respondent (the
defendant) in respect of a series of three articles published by the defendant on three
successive days in December, 1971. The defendant entered appearance and filed a defence
pleading justification and fair comment, but in the event the defence was withdrawn and
judgment was entered for the plaintiff by consent. The main ground of appeal was that the
Deputy Registrar had erred in holding that the plaintiff had received damages in previous
actions in respect of the same or similar libels; the second ground was that in considering
whether this was proper case for the award of exemplary damages the Deputy Registrar
had erred in saying that the defendant had had exemplary damages awarded against it in a
previous action.

Held:
 (i) The proper approach where a plaintiff has brought separate actions in respect of
the publication of the same or similar libels is for the court to consider how far
the damage suffered by the plaintiff can reasonably be attributed solely to the
libel the subject of the action before it, and how far it ought to be regarded as
the joint result of the two libels. If some part of the damage is considered to be
the joint result of the two libels the court should bear in mind that the plaintiff
ought not to be compensated twice for the same loss.

Dictum of Lord Reid in Lewis v Daily Telegraph (3) followed.

(ii) Simply because a broad phrase such as "betrayal of the interests of the masses"
is a fair assessment of the effects of two alleged actions or courses of conduct,
this does not make those two alleged actions or courses of conduct, far less the
two libels referring thereto, the same or similar.

(iii) In Zambia exemplary damages may be awarded in any case where the defendant
has acted in contumelious disregard of the plaintiff's rights.

(iv) Simply because a defendant has acted in contumelious disregard of a plaintiff's

rights does not mean that the court must automatically add to the compensatory
award an additional sum by way of exemplary or punitive damages; the court
should consider first what sum to award as compensation and that this sum
should take into account the whole of any aggravating conduct of the defendant
(i.e. any conduct in contumelious disregard of the plaintiff's rights), and it should
then turn to consider whether the proposed award is sufficient to punish and
deter the defendant.

Times Newspapers of Zambia Limited v Kapwepwe (1) followed.

(v) The exemplary element is and should be included in every compensatory award.

(vi) In cases where there has been aggravating conduct by the defendant the only
factor which falls to be considered separately is the means of the defendant. The
actual conduct of the defendant is not considered again; it should already have
been taken into account in arriving at the compensatory award.

Cases cited:

(1) Times Newspapers of Zambia limited v Kapwepwe (1973) Z.R. 292.

(2) Zambia Publishing Co. Ltd v Kapwepwe (1974) Z.R. 294.
(3) Lewis v Daily Telegraph [1963] 2 All E.R. 151.
(4) Attorney-General v Kapwepwe (1974) Z.R. 207.
(5) Rookes v Barnard [1964] 1 All E.R. 367.
(6) Cassel v Broome [1972] 1 All E.R. 801.
(7) Ley v Hamilton (1935) 153 L.T.384.

For the appellant: A.P. Annfield, Annfield & Sikatana.

For the respondent: M. S. Banda, Jaques & Partners.

Judgment
BARON, D.C.J.:

This is an appeal by the plaintiff in the court below (to whom I will continue to refer as the
plaintiff) against an assessment of damages made by the Deputy Registrar on the grounds,
first, that the award of compensatory damages was inadequate and second, that the Deputy
Registrar erred in not awarding exemplary damages against the respondent (the
defendant).

The action arose out of three articles published by the defendant in the Zambia Daily Mail
on Tuesday, Wednesday and Thursday, the 14th, 15th and 16th December, 1971. The
articles were described as having been written by a special correspondent a fact which was
relied upon by the plaintiff in support of the argument that the defendant had not merely
published a news item but had in effect libelled the plaintiff by way of editorial comment.

There can be no doubt that the articles were highly defamatory, and although at one stage
the defendant filed a defence, pleading justification and fair comment, in the event the
defence was withdrawn and judgment was entered for the plaintiff by consent. The damages
were assessed by the Deputy Registrar at K6,000. The main ground of appeal was that the
Deputy Registrar had erred in holding that the plaintiff had received damages in previous
actions in respect of the same or similar libels; the second ground of appeal was that in
considering whether this was a proper case for the award of exemplary damages the Deputy
Registrar had erred in saying that the defendant had had exemplary damages awarded
against it in a previous action.

The two actions referred to by the Deputy Registrar were the subject of appeals to this
court; the cases were Times Newspapers of Zambia Limited v Kapwepwe (1) and Zambia
Publishing Company Limited v Kapwepwe (2). In the first of these cases, to which I will
refer as the military training case, the libel complained of was that the plaintiff, the leader
of a political party in opposition to the Government, had for some time been sending
Zambians to Angola for training in guerrilla warfare; it was also alleged that the plaintiff's
party was tribalistic and aimed to cause chaos in the country. Mr Annfield submitted that
this libel was substantially different from the one now before us. The amended statement of
claim in the present case, after setting out the various aspects of the three articles
complained of, alleges that by the words in question the defendant meant and was
understood to mean that "the plaintiff had acted in a treacherous and unpatriotic manner
and had disregarded the best interests of his country in order to advance his own
ambitions by any means", that the plaintiff "was prepared to support the Government of
Rhodesia and South Africa in order to obtain his own ambitious ends", that the plaintiff "was
puppet of these Governments and . . .a man without principle who was prepared, at
different times, to change his policies to win support from various sections of the
community", that the defendant intended to show the plaintiff as "an enemy of the people
of Zambia and a man prepared to act on instructions of any enemy country in order to
further his own selfish political ambitions", and that the plaintiff was "selfish, a hypocrite,
unpatriotic and an anarchist". Mr Banda, on behalf of the defendant submitted that these
allegations are similar to those in the military training case in that both allege the betrayal
of the interests of the masses. I am unable to accept this submission; I do not think that a
broad phrase such as "betrayal of the interests of the masses", simply because it is a fair
assessment of the effects of both alleged actions or courses of conduct, can make the two
alleged actions or courses of conduct, far less the two libels, the same or similar. In the
second of the two cases referred to by the learned Deputy Registrar, Zambia Publishing
Company limited v Kapwepwe (2), to which I will refer as the cartoon case, the cartoon in
question, together with its captions, depicted the plaintiff as receiving or due to receive
money from the Government of South Africa, and as organising his political party on
tribalistic lines; only the first of these allegations could fairly be described as similar to the
present libel. In that case the plaintiff was awarded K7,500 but no exemplary damages were
awarded.

Quite apart, therefore, from the consideration with which I will deal presently, the Deputy
Registrar must be held to have erred on the facts in holding that the military training libel,
and in part the cartoon libel, were similar to the present libel, and in holding that exemplary
damages had been awarded against the defendant in the cartoon case. This court is
therefore at large as to damages.

The proper approach where a plaintiff has brought separate actions in respect of the
publication of the same or similar libels was explained by Lord Reid in Lewis v Daily
Telegraph (3) at p. 156:

"[the jury] ought . . . to be directed that . . . they should consider how far the
damage suffered by the plaintiffs can reasonably be attributed solely to the libel with which
they are concerned and how far it ought to be regarded as the joint result of the two libels.
If they think that some part of the damage is the joint result of the two libels they should
bear in mind that the plaintiffs ought not to he compensated twice for the same loss."

In that case similar libels were published in two national newspapers on the same day;
separate actions were brought and were dealt with by different juries. That was the position
also in Attorney General v Kapwepwe (4), where number of defendants had disseminated
the same libel virtually simultaneously and the plaintiff had brought separate actions against
the various defendants. When the last actions came before this court on the issue of
quantum of damages we approached the matter by considering what total damages would
have been proper to award had all the actions been consolidated. The present case is quite
different. Here we have a libel published by way of a cartoon in September, 1971, and three
months later a series of three articles on successive days, making very much more serious
and detailed allegations, some of which were expressed as factual statements. We have to
consider the loss suffered by the plaintiff as a result of the libels in this case, and whether
any part of that loss can be said to overlap the loss caused by the cartoon libel three
months earlier and in respect of which the plaintiff has already been compensated;( the fact
that the two libels were published by the same defendant is irrelevant for that purpose). I
am unable to hold that there could be any significant overlap; it is true that, to the extent
that both libels allege the receipt of funds from the Government of South Africa, the
allegations are similar, but the lapse of time and the different characters of the two
publications are such that in my view the loss suffered by the plaintiff cannot be said to be
in part due to the joint result of the cartoon libel and the present libel. If there were any
joint result I think it would operate in the opposite direction, since readers of the second
libel might well recall the earlier one and in consequence attach added weight to the second.

The present libels were very serious, particularly in view of the prevailing political climate in
southern Africa at the time. The articles were a conscious attack of the most serious kind
and in quite extreme language, on a man who was a leading political figure in the country
and had held the second highest post in the land. The articles purported to be a combination
of statements of fact and comment. In the eyes of readers who believed even some of the
things that were said, or who were put in doubt as to whether there might not be some
foundation for the allegations, the plaintiff would have been seriously damaged politically.
Taking everything into account, including the conduct of the defendant to which I will refer
presently, I am of the opinion that a proper sum to award as compensatory damages is
K15,000.

I turn then to consider Mr Annfield's submission that this award should be increased by an
award of exemplary damages. The proper approach to the question of exemplary damages
was laid down by this court in the Times Newspapers' case (1), where we declined to follow
Rookes v Barnard (5) and Cassel v Broome (6) in so far as they limited the circumstances in
which it was competent to award exemplary damages to cases falling within certain
categories. In Zambia exemplary damages may be awarded in any case where the
defendant has acted in contumelious disregard of the plaintiff's rights. But we made it clear
that simply because a defendant has acted in this way does not mean that the court must
automatically add to the compensatory award an additional sum by way of exemplary or
punitive damages; we said that the court should consider first what sum to award as
compensation and that this sum should take into account the whole of any aggravating
conduct of the defendant (i.e. any conduct in contumelious disregard of the plaintiff's
rights), and that it should then turn to consider whether the proposed award is sufficient to
punish and deter the defendant. In the famous words of Lord Delvin in Rookes v Barnard (5)
at p. 411 G:

". . . if, but only if, the sum which [the jury] have in mind to award as compensation
(which may of course be a sum aggravated by the way in which the defendant has behaved
to the plaintiff) is inadequate to punish him for his outrageous conduct, to mark their
disapproval of such conduct and to deter him from repeating it, then they can award some
larger sum."

It is pertinent to stress that the exemplary element is and should be included in every
compensatory award. Thus, Lord Hailsham in Cassel v Broome (6) said at p. 828 h:

"The true explanation of Rookes v Barnard (5) is to be found in the fact that where
damages for loss of reputation are concerned, or where a simple outrage to the individual
or to property is concerned, aggravated damages in the sense I have explained can . . .
take care of the exemplary element . . ."

And Lord Reid in the same case at p. 842, dealing with the speech by Lord Atkin in Ley v
Hamilton (7), described it as:

". . . intended to show that elements properly included in compensatory damages

were far wider than the majority in the Court of Appeal had thought and that the whole of
this 5,000 pounds was in fact justified as being compensatory. "

And later on the same page he concluded:

"Where the Court of Appeal went wrong was in failing to realise that in the older
cases damages were frequently referred to as exemplary or punitive although they were in
reality compensatory."

In the Times Newspapers' case (1) I said at p. 303:

"It is true, of course, that 'aggravated' compensatory damages are designed to

compensate the plaintiff, whereas exemplary damages are designed to punish the
defendant. But I do not regard these different objectives as rendering the damages different
in character; the same conduct of the defendant, and the same aggravating and mitigating
factors are taken into account save that in the case of exemplary damages one must have
regard to the means of the defendant."

Hence in cases where there has been aggravating conduct by the defendant the only factor
which falls to be considered separately is the means of the defendant. One defendant of
modest means may well be adequately punished for his aggravating conduct by the award
the court has in mind to make, whereas another defendant whose conduct was precisely the
same, but who is very rich indeed, may require a very much larger award to be made
against him before the court can be satisfied that he has been made to pay a sum of money
which will mark the court's disapproval of his conduct and deter him from a repetition. The
actual conduct of the defendant is not considered again; it should already have been taken
into account in arriving at the compensatory award. In the present case the aggravating
conduct was that the libel was in effect by way of editorial statement and comment, and
that it had been made without any attempt to check that there was a foundation for it.
There were also long delays by the defendant in the conduct of the action. I have taken all
these factors into account in arriving at my proposed compensatory award. Mr Annfield
asked us to have regard also to the defendant's failure to apologise, but I attach little
importance to this particularly since the matter was not raised until some fifteen months
after the publication of the libel (the plaintiff having been in detention for most of the
intervening period) at which stage a public apology might have done him more harm than
good.

Doyle, C.J., said in Attorney- General v Kapwepwe (4) at p. 215:

"Exemplary damages are given for the purpose of bringing home to a defendant the
error of his ways. In the case of Government it is impossible reasonably to award a sum
that would hurt the Government pocket. The use of the award of exemplary damages is to
induce Government to discipline its servants whose action has resulted in loss to
Government, and so to serve as a deterrent for future cases. In my opinion it is not
necessary to give extravagant sums for this purpose."

The defendant is a Government-owned newspaper and the foregoing dictum is entirely in

point; I do not regard my proposed compensatory award as inadequate to punish and deter
the defendant.

In the result I would allow this appeal and increase the damages to K15,000.

Judgment

GARDNER, J.S.: I concur.

Judgment

BRUCE-LYLE, J.S.: I also concur.

Judgment

BARON, D.C.J.: The appeal is allowed with costs. The award of damages is increased to
K15,000.

Appeal allowed
JACOB MULENGA v RUCOM INDUSTRIES LIMITED (1978) Z.R. 21 (S.C.)

SUPREME COURT
SILUNGWE , C.J., GARDNER AND BRUCE-LYLE, JJ.S.
17TH NOVEMBER ,1977, AND 30TH MARCH, 1978.
(S.C.Z. JUDGMENT NO. 15 OF 1978)

Flynote

Damages - Interest - Rate of - Discretion of court - Guidelines for proper exercise of.

Headnote

The appellant (the plaintiff) was engaged by the respondent (the defendant) under a written
contract. He was suspected of theft from his employer and first suspended and then
dismissed. It was held that the dismissal was wrongful and that the plaintiff was entitled to
damages and certain other relief. The case is reported purely on the question of interest,
which the trial judge awarded at the rate of 4 1/2 per cent per annum.

Held:
(i) An award of interest is at the trial judge's discretion and the only ground for
varying such an award is if the judge failed to exercise his discretion judicially.

(ii) Although the parties in argument did not assist the trial judge on the question of
interest, guidelines existed which he failed to take into account; he failed also to
take into account O.36, r. 8 of the High Court Rules. In the event he failed to
exercise his discretion judicially.

(iii) The last time the question came before the Supreme Court being in July, 1976,
when the rate of interest awarded was 7 per cent, and there being no argument
or evidence put forward to justify an award of interest at a higher rate, a proper
award of interest was 7 per cent per annum.

Cases cited:

(1) United Bus Company of Zambia v Shanzi (1977) Z.R. 397.

(2) Jefford v Gee [1970] 2 Q.B., 130.

Legislation referred to:

Law Reform (Miscellaneous Provisions) Act, Cap. 74, s. 4.
Supreme Court Rules (England), O. 6, r. 2.
High Court Rules, Cap. 50, O. 36, r. 8.

For the appellant: N. Kawanambulu, Shamwana & Co.

For the respondent: H. H. Ndhlovu, Jaques & Partners.

Judgment
GARDNER, J.S., having dealt with the matters not relevant to this report continued:

The last item awarded in damages was interest on the sum of K2,128.74 (which amount
had already been paid by the defendant to the plaintiff), at the rate of 41/2 per cent per
annum. The plaintiff has appealed against the rate of interest awarded on the grounds that
it is insufficient and should be at the rate of 81/2 per cent as claimed in the writ. No
argument was put forward as to the basis of this ground of appeal and it has been left to
this court to determine the issue without the benefit of argument. In my view, as the award
of interest is at the trial judge's discretion, the only ground for varying the order is if the
learned judge failed to exercise his discretion judicially. Although the plaintiff did not say so,
claim for interest in these circumstances is founded under the Law Reform (Miscellaneous
Provisions) Act (Cap. 74 of the Laws of Zambia). Section 4 of that Act provides that in any
proceedings tried in any court of record for the recovery of any debt or damages, the court
may, if t thinks fits order that there shall be included in the sum for which judgment is
given, interest at such rate as it thinks fit. I agree that this is an appropriate case for the
award of interest under this section and I have looked for guidance in the Supreme Court
Practice (1976) (The White Book). The editorial note 7C to O. 6, r. 2, reads at para. (4):

"The rate of interest to be awarded should be a realistic rate and should normally be
based on the 'appropriate' rate, i.e. the average rate of interest allowed on money in court
placed on the short term investment account."

The note then sets out relevant rates which vary from 5 per cent in 1965 to 9 per cent in
1974. In this country there is no Short - Term Investment Account which corresponds with
that in use in England where the money is invested with the National Debt Commissioners,
and, in the absence of evidence relating to the current rates of interest paid on bank deposit
accounts and the present minimum commercial interest rate which may be in force, the
court has no authoritative guide. The last time this court awarded interest under s. 4 of the
Law Reform (miscellaneous Provisions) Act was in the case of United Bus Company of
Zambia and Shanzi (1). The rate of interest awarded then was 7 per cent in the month of
July, 1976. No argument or evidence was put before this court to justify an award of
interest higher than that awarded in the case to which I have just referred, and I see no
reason to award a different rate of interest.

I now have to consider whether, although I would award that higher rate of interest, the
learned trial judge's award should be set aside on the grounds that he did not exercise his
discretion judicially. The learned trial judge gave no reasons for his award of 4 1/2 per cent
interest and this is no doubt because neither of the parties gave him any assistance to
enable him to exercise his discretion. Although the parties were at fault, there were
guidelines, which I have cited, which, in my view, should have been taken into account by
the learned trial judge. Furthermore, he failed to take into account that under O. 36, r. 8 of
the High Court Rules, interest on all judgments runs at the rate of 6 per cent unless
otherwise ordered. In the event the learned trial judge failed to exercise his discretion
judicially and I would set aside the award of the learned trial judge and award interest at
the rate of 7 per cent per annum on the K2,128.74 already paid to the plaintiff calculated
from the 1st February, 1974, to the 16th January, 1975, together with interest at the same
rate on the additional sums awarded under this judgment calculated from the dates when
the moneys became payable to the date of this judgment.

I would therefore allow this appeal to the extent of giving judgment for the plaintiff for
damages for wrongful dismissal as follows:
 (a) One month's salary from 17th December, 1974, to 17th January, 1975 -
K201.45.

(b) Accrued leave pay at the rate of two and a third days per month from the 12th
February, 1973, to the 17th January, 1975.

(c) Refund of pension contribution at the rate of K5 per month from May, 1973, to
17th December, 1974.

(d) Interest at 7 per cent on K2,128.74 from 1st February, 1974, to 16th January,
1975, calculated monthly from the date on which each month's salary fell due.
(The award is made in this form rather than by halving the rate of interest as
recommended in the case of Jefford v Gee (2) because the resultant figure
although substantially the same will be more accurate by this calculation.)

(e) Interest at 7 per cent on (a), (b), and (c) from the 17th December, 1974, until
the date of this judgment

Judgment

SILUNGWE, C.J.: I have had the opportunity of reading the judgment just delivered and I
concur.

Judgment

BRUCE-LYLE, J.S.: I also concur.

Judgment

SILUNGWE, C.J.: Judgment will be entered for the appellant in accordance with the above
judgment with costs to the appellant in this court and in the court below.

Appeal allowed in part

MICHAEL TEMBO v THE PEOPLE (1978) Z.R. 24 (S.C.)

SUPREME COURT
BARON, D.C.J., CHOMBA AND BRUCE-LYLE, JJ.S.
21ST FEBRUARY, 1978
(S.C.Z. JUDGMENT NO. 8 OF 1978)

Flynote

Sentence - Suspension - Conditions attaching to order of - Necessity for conditions to be

adequately specified.

Headnote
The appellant was convicted of indecent assault and sentenced to two years' imprisonment
with hard labour of which eight months was suspended for twelve months "on condition the
accused behaved". The case is reported only on the propriety of the condition attaching to
the suspension.

Held:
The condition attached to the order of suspension was not permissible because it did not
sufficiently indicate to the offender what his future conduct should be.

Case cited:

(1) Muloshi and Ors v The Queen 1961 R. & N. 1.

Legislation referred to:

Criminal Procedure Code, s. 16.

For the appellant: In person.

For the respondent: R. Balachandran, State Advocate.

Judgment

CHOMBA, J.S.: delivering the judgment of the court dealt with matters not relevant to this
report and continued:

There is one point on which we feel constrained to make an observation. In sentencing the
appellant the magistrate suspended part of it on condition that the accused should behave.
That was an improper order of suspension because it is capable of being construed in the
widest possible sense so that if during the suspension period the accused misbehaved, say
by calling his employer stupid, he might be considered to be committing a breach of the
suspension.

In the case of Muloshi and Others v The Queen (1) the trial magistrate ordered the
suspension of part of the accused persons' sentence on condition of "good behaviour". The
Federal Supreme Court, whose view we share, held that because it did not sufficiently
indicate to the offenders what their future conduct should be, that condition was not
permissible. An example of a proper order in a case of a man convicted of, say, grievous
harm, is that part or the whole of the sentence imposed is suspended on condition that
during a certain period (which should be prescribed and is not to exceed three years in
terms of s. 16 of the Criminal Procedure Code) he is not convicted of any offence involving
violence. Magistrates are hereby advised to be careful and avoid making nebulous
suspension orders such as the one made in the present

Sentence set aside and varied

NYAMBE MUBUKWANU LIYUMBI v THE PEOPLE (1978) Z.R. 25 (S.C.)

SUPREME COURT
BARON, D.C.J., CHOMBA AND BRUCE-LYLE, JJ.S.
21ST FEBRUARY, AND 23RD MARCH, 1978
(S.C.Z. JUDGMENT NO. 12 OF 1978)
Flynote

Criminal law and procedure - Murder - Provocation - Essential elements of - Necessity for
presence of all three elements.
Criminal law and procedure - Murder - Provocation - Provocative conduct - Finding that
accused easily provoked - Application of subjective test - Propriety of.
Criminal law and procedure - Murder - Provocation - Reasonable relationship rule.
Sentence - Indiscriminate and unwarranted use off weapons.

Headnote

The appellant was charged with murder; the trial judge held that the defence of provocation
had been made out and convicted him of manslaughter. The deceased was at a bus stop
and had in his possession a carton containing certain property; the deceased moved away
from the spot where the carton was lying and the appellant was seen to move it to another
place. When the deceased discovered that his carton was missing he went in search of it
and found it with the appellant. The trial court accepted the fact that the deceased accused
the appellant of attempting to steal the carton, and that the appellant's reaction to this
accusation was to take out a knife and stab the deceased in the throat. Death was
instantaneous.

The appeal was against the sentence imposed by the trial court of ten years' imprisonment.

Held:
(i) There are three inseparable elements to the defence of provocation - the act of
provocation, the loss of self-control, both actual and reasonable, and the
retaliation proportionate to the provocation. All three elements must be present
before the defence is available.

Dictum of Devlin, L.J., in Lee Chun - Chuen v R . (1) followed.

(ii) The question is not merely whether an accused person was provoked into losing
his self-control, but also whether a reasonable man would have lost his
self-control and, having done so, would have reacted as the accused did.

Makomela v The People (3) cited.

(iii) It was a misdirection for the trial judge to consider only the idiosyncracies of the
appellant rather than the objective test of the reasonable man of the community
to which the appellant belongs.

(iv) The savage stabbing which caused the death was out of all proportion to the
verbal accusation of theft.

(v) The courts will deal sternly with persons found guilt of offences involving the
unwarranted and indiscriminate use of weapons.

Cases cited:

(1) Lee Chun - Chuen v R. [1963] A.C. 220.

(2) Phillips v R. (1969) 53 Cr. App. R. 132.
(3) Makomela v The People (1974) Z.I.R 254.
(4) King v Lesbini [1914] 3 K.B. 1116.
(5) Simutenda v The People (1975) Z.R. 294.
(6) Walker v R. (1969) 53 Cr. App. R. 195.
(7) Siyakalonga v The People (1977) Z.R. 61.

Legislation referred to:

Penal Code, Cap. 146, ss. 199, 205, 206.

For the appellant: In person.

For the respondent: K. R. K. Tampi, State Advocate.

Judgment

CHOMBA, J.S., delivered the judgment of the court.

On 21st February, 1978, we heard and dismissed this appeal but did not give our reasons
for the dismissal. We now propose to give them.

The appellant was originally charged with murder but after his trial he was convicted of
manslaughter. He was thereafter sentenced to ten years' imprisonment with hard labour.
The appeal is against sentence only.

The salient facts of the case are briefly to the following effect. On 8th May, 1975, the
deceased Lovemore Mukelabai, aged about twenty-one years, was at a bus stop which is
also a market place in the Chinika township in Lusaka. He was travelling to Shachele village
in the Mumbwa district. While at the bus stop he joined up with an uncle of his named
Kandandu Lisholo, who was travelling to the same destination. Normal business was going
on at the market and one of the marketeers present at the time was Thomas Phiri. The
combined effect of the evidence of Thomas Phiri and Kandandu Lisholo, both of whom
testified for the prosecution, was that the deceased had a baggage in the form of a carton,
containing various things. At one stage the deceased moved away from the carton and the
appellant was seen by Thomas Phiri to move the carton from where the deceased had left it
to another place where the appellant kept it close to himself. When on his return the
deceased failed to find it he went in search of it and presently noticed it where the appellant
was. He went to the appellant and twice requested for its return to him but the appellant
remained mute. After the second request both witnesses saw the appellant put his hand into
his outer garment which was either a jacket or a pullover; he took out an okapi knife and
instantly severed the deceased's throat with it. Death was instantaneous.

The investigating officer, Constable Albert Mubita, produced the appellant's warn and
caution statement which was admitted after a trial within a trial. In this the appellant said,
inter alia, that he did not take the deceased's carton although he was accused of its theft.
Despite his denial he was manhandled by both the deceased and his uncle Kandandu.
Additionally, the deceased insulted, and finally physically attacked him. Fearing that he
might be killed he defensively stabbed the deceased.

There were two defences advanced at the trial, viz. self-defence and provocation. The
learned trial judge rejected the first defence and in doing so he was amply fortified by the
facts before him. On the other hand he upheld the defence of provocation. He said the
following on the point:

"I turn now to consider the defence of provocation. The provocation pleaded by the
accused is that he was falsely accused of having stolen the carton box belonging to the
deceased. That is what the accused states in the warn and caution statement. Indeed, it
must be accepted that to be accused of being a thief at a market place cum bus stop is
most embarrassing to any reasonable person. This proposition comes within the terms of
Section 206 of the Penal Code. The accused is an ordinary person in the community to
which he belongs and using the prosecution evidence which has come by way of the
accused's own statement, the accused was sufficiently provoked and the insult was such of
a nature as to be likely to deprive the accused of the power of self-control and this
provocation induced him to assault the deceased in the manner he did it, namely by
stabbing him with a knife, a fact which the defence has not controverted. Therefore on the
totality of the evidence, the deference of provocation succeeds and that being the position, I
would acquit the accused of the offence of murder but convict him of the offence of
manslaughter contrary to Section 199 of the Penal Code, Cap. 146."

He concluded his judgment by stating:

"I wish to state that although I have reduced the charge of murder to manslaughter,
I have done so because I feel that the accused had been provoked and I found that it was
not necessary for me to give degrees of provocation. I have treated the accused as a person
who could easily be provoked when falsely accused of theft." [The italics are ours.]

In the first place it has to be stressed that there are three inseparable elements to the
defence of provocation. These were spelt out by Devlin, L.J., in Lee Chun - Chuen v R. (1) at
p. 231, when he said:

"Provocation in law consists mainly of three elements - the act of provocation, the
loss of self control, both actual and reasonable, and the retaliation proportionate to the
provocation. The defence cannot require the issue to be left to the jury unless there has
been produced a credible narrative of events suggesting the presence of these three
elements. They are not detached."

On a correct construction of the law as reflected by both the relevant statutory provisions
and decided cases, it is difficult to see how the facts of this case as outlined above can
sustain a defence based on provocation. The law is set out in ss. 205 and 206 Penal Code as
follows:

205. (1) When a person who unlawfully kills another under circumstances which,
but for the provisions of this section, would constitute murder, does the act which causes
death in the heat of passion, caused by sudden provocation as hereinafter defined, and
before there is time for his passion to cool, he is guilty of manslaughter only.

(2) The provisions of this section shall not apply unless the court is satisfied that the
act which causes death bears a reasonable relationship to the provocation.

206. (1) The term' provocation' means and includes, except as hereinafter stated,
any wrongful act or insult of such a nature as to be likely, when done or offered to an
ordinary person, or in the presence of an ordinary person to another person who is under
his immediately care, or to whom he stands in a conjugal, parental, filial, or fraternal
relation, or in the relation of master or servant, to deprive him of the power of self-control
and to induce him to assault the person by whom the act or insult is done or offered. For
the purposes of this section, 'an ordinary person' shall mean an ordinary person of the
community to which the accused belongs."

The following main principles emerge from these sections:

(1) If a man kills another in consequence of reacting to sudden provocation and he so

kills in the heat of passion and before there is time for his passion to cool, he is guilty of
manslaughter only.
(2) His mode of resentment must bear reasonable relationship to the provocation. If
the mode is out of proportion to the provocation then the principle in (1) above is not
available to him.
(3) A wrongful act or insult is not provocation unless it is such as would deprive an
ordinary person (of the community to which the man who kills belongs) of the power of
self-control and induce him to assault the person who does the wrongful act or utters the
insult.

There is a chain of authorities which have underlined the foregoing principles but here we
propose to cite only two for the purpose of the present case.

In Phillips v R. (2) Lord Diplock had this to say at p. 135:

". . . what the jury have to consider, once they have reached the conclusion that the
person charged was in fact provoked to lose his self control, is not merely whether in their
opinion the provocation would have made a reasonable man lose his self control but also
whether, having lost his self control, he would have retaliated in the same way as the
person charged in fact did."

Back at home this court stated in Makomela v The People (3) at p. 258:

"It is important ... not to overlook that the question is not merely whether an
accused person was provoked into losing his self-control but also whether a reasonable man
would have lost his self-control and, having done so, would have reacted as the accused
did."

Adverting to the present case, in finding that the appellant was provoked the learned trial
judge overlooked the prosecution evidence which shows that the deceased had a reasonable
cause for accusing the appellant of theft. The judge ought to have resolved the question
whether a reasonable man of the appellant's ilk, finding himself in the situation in which the
appellant was, would be provoked to the degree of losing his self-control in the light of that
evidence. On a proper reading of the entire judgment of the learned trial judge it is evident
that a subjective test was used in determining that the deceased's utterance was
provocative. We come to this view having regard to the passage which occurs in the
concluding paragraph to which we have earlier referred, namely:

"I have treated the accused as a person who could easily be provoked when falsely
accused of theft."

It is quite clear that in stating this the judge considered only the idiosyncracies of the
appellant rather than the objective test of the reasonable man of the community to which
the appellant belongs. That was a misdirection. Moreover the cases of Phillips (2) and
Makomela (3) to which we have already adverted bear testimony to the proposition that in
considering the defence of provocation the court should not stop at the point at which it is
satisfied that the person in the dock was provoked into losing his self-control. It should go
further and determine whether the stimulus to which the accused reacted as he is proved to
have done would have had the same effect on reasonable man. The rationale behind the
preference of the objective to the subjective test is that in the former case one standard is
applied to all, while the latter would apply differently according to each person's
temperamental peculiarities. As Avory, J., said in King v Lesbini (4) at p. 1118, by applying
the subjective test:

"It would seem to follow . . . that a bad-tempered man would be entitled to a verdict
of manslaughter where a good-tempered one would be liable to be convicted of murder."

Another error into which the learned judge fell regards his failure

to apply the reasonable relationship test enunciated by s. 205 (2) of the Penal Code to the
case before him. It is not without significance that this subsection provides in terms that the
provisions of subsection (1) of the section shall not apply unless the court is satisfied that
the act which causes death bears a reasonable relationship to the provocation. It thus
underlines the inseparability of the reasonable relationship test from the other elements of
provocation mentioned in Phillips (2). The judge therefore ought to have asked himself
whether the use of a knife bore a reasonable relationship to the verbal accusation. Had he
done so he must have found that the savage stabbing which caused the death was out of all
proportion to the verbal accusation of theft. The reaction of the appellant in this case was
not dissimilar to that of the appellant in Simutenda v The People (5) the short facts of which
were as follows: The deceased had stolen several items of clothing belonging to the
appellant. One day the latter found the deceased at a beer party wearing the same clothes.
Incensed by this he immediately attacked the deceased with an axe and struck him
repeatedly to death. The appellant was tried and convicted of murder. On appeal it was
urged on his behalf that the appellant had been provoked by the deceased's effrontery in
wearing the appellant's clothes in the appellant's presence. Upholding the trial judge's
rejection of the defence of provocation this court stated at p. 299:

". . . to hack a man to death with an axe because he has stolen your clothes, and
perhaps because he has the impertinence to wear them your presence, does not bear the
necessary reasonable relationship to the provocation."

Again in Makomela (3) at p. 259 this court stated:

". . . to shoot man because you believe on good grounds that he has stolen your
money and because he has threatened to beat you with a stick does not bear the necessary
reasonable relationship to the provocation."

In emphasis of this point the court in the last mentioned case even adopted the dictum of
Fenton Atkinson, L.J., in Walker v R. which occurs at p. 202, to wit:

"It has never been the law that the man who completely loses his temper on some
trivial provocation and reacts with gross and savage violence which kills his victim can hope
for a jury verdict of manslaughter on grounds of provocation."

By parity of reasoning we are unable to see how the action of the appellant in the present
case in ruthlessly stabbing the deceased in retaliation for a verbal accusation can be said to
bear a reasonable relationship to that accusation.

However, the appellant was convicted of manslaughter and we must deal with him on that
basis. In the event our task is to determine what is a proper sentence having regard to the
facts of this case. We have in the past repeatedly warned that we shall deal sternly with
persons found guilty of offences involving the unwarranted and indiscriminate use of
weapons.

For instance in Siyakalonga v The People (7) we said:

"We have given notice in the past that we will deal severely with cases in which
people use lethal weapons and in particular knives for the purpose of settling trivial
quarrels. If people choose to use knives in this way they must expect courts to deal
severely with them."

The appellant here was jailed for ten years with hard labour. In the circumstances of the
present case that sentence does not come to us with a sense of shock. The appeal is
dismissed.

Appeal dismissed

CAPHAS CHILESHE KASANDA v THE PEOPLE (1978) Z.R. 31 (H.C.)

HIGH COURT
CULLINAN, J.
17TH MARCH, 1978
(HLA/188/77)

Flynote

Criminal law and procedure - Escape from lawful custody - S. 199 of the Penal Code, Cap.
146 - Definition of.
Criminal law and procedure - Escape from lawful custody - Escape by bribing a police officer
- Whether escape.
Sentence - Misdemeanour - Sentence not specified - Maximum sentence.

Headnote

The appellant escaped from a cell while under lawful custody. He was charged and convicted
of escape under s. 119 of the Penal Code, Cap. 146. In his defence in the lower court he
contended that the police officer had released him on the payment of K50.

Held:
(i) To escape is to gain one's freedom otherwise than by due course of law.

(ii) The appellant cannot be heard to say that he believed that the police officer
was releasing him by due course of law through payment of a bribe.

(iii) In misdemeanour, where no particular punishment is specified, the general

 punishment for misdemeanour under s. 38 of the Penal Code applies, namely
a maximum sentence of two years.

Legislation referred to:

Penal Code, Cap. 146, ss. 38, 119.

For the appellant: In person.

For the respondent: W.M. Tsotsi, State Advocate.

Judgment

CULLINAN, J.: The appellant was convicted by the subordinate court of the first class for the
Livingstone District of escape contrary to s. 119 of the Penal Code and was sentenced to
three years' imprisonment with hard labour.

It was alleged that the appellant escaped from a cell at Livingstone subordinate court while
under custody. The appellant testified that a police officer released him on the payment of a
sum of K50. The issue was one of credibility. As the learned trial magistrate observed the
appellant admitted under cross-examination that money is taken from and held on behalf of
prisoners on remand. Further, he never cross-examined the police officer on the point but
only raised the matter in defence. The learned trial magistrate was justified in accepting the
police officer's evidence. In any event, even if the appellant's story were true, the offence
was nonetheless committed. To escape is to gain one's freedom otherwise than by due
course of law. The appellant cannot be heard to say that he believed that the police officer
was releasing him by due course of law through the payment of bribe of K50. There is no
merit in the appeal against conviction and it is dismissed.

With regard to sentence, I must say that it comes to me with a sense of shock. The
appellant had one previous conviction for robbery. Indeed he was convicted thereof only
minutes before his escape. The severity of the sentence under consideration is reflected by
the fact that he was sentenced to no more than two years' imprisonment for the robbery. In
any event, the sentence is a nullity. Under s. 119 of the Penal Code, the offence is a
misdemeanour in respect of which no particular punishment is specified. In that case the
general punishment for a misdemeanour under s. 38 of the Penal Code applies, namely a
maximum sentence of two years' imprisonment. The sentence of the court below is set
aside and a sentence as of six months' imprisonment, to be served after the present
sentence being served for robbery, is substituted.

Appeal dismissed

GEORGE BIENGA v THE PEOPLE (1978) Z.R. 32 (H.C.)

HIGH COURT
HADDEN, J.
20TH FEBRUARY, 1978
(HLA/168/1977)

Flynote

Evidence - Documentary evidence - Secondary evidence - Original not produced - When

admissible.
Evidence - Documentary evidence - Secondary evidence - Original document cannot be
produced - Party desiring to prove its contents - Proper course.
Evidence - Secondary evidence - Lost document - Admission of secondary evidence -
Degree of proof required.

Headnote

The appellant was convicted of theft by public servant.

The appellant who was in charge of the police station at Livingstone, had received
K1,770.00, which had been received from a prisoner, and had signed a receipt for it in a
register. Later M took over from him and, whilst handing over, the contents of the safe were
removed in his presence and in the presence of another officer and were recorded on a
piece of paper by M. The recorded paper was signed by the appellant and M.

Thereafter the recorded paper was typed. In the typed copy the amount in issue was not
included. At the trial the typed copy was produced as the original paper was not available.
The person who had typed from the original was not called as a witness.

It was contended that in the absence of the original, the typed record should not be
admitted as evidence.

Held:
(i) The secondary evidence of the original document is admissible provided it can
be established that the original is lost or cannot be produced. Secondary
evidence may either be in the form of a copy of the original or by oral
evidence.

(ii) When the original document is in the possession of a stranger, the proper
course for the party desiring to prove the contents of the document is to
serve the stranger with a witness summons to produce the original.

(iii) Before secondary evidence of a lost document can be admitted, the court
must be satisfied that the document cannot be found and an adequate search
has been made.

(iv) It is difficult to lay down any general rule as to the degree of diligence
necessary in searching for the original document to entitle the party to give
secondary evidence of the contents. If document be of considerable value, or
if there be reason to suspect that the party not producing it has a strong
interest which would induce him to withhold it, a very strict examination
would be required; but if a document is useless, and the party could not
have an interest in keeping it back, a much less strict search would be
necessary.

Cases cited:

(1) R. v Nowaz [1976] 3 All E.R. 5.

(2) Brewster v Sewell 106 E.R. 672.
For the appellant: G. Y. Rathanraj, Assistant Senior Legal Aid Counsel.
For the respondent: A .H. O. Oder, State Advocate.

Judgment

HADDEN, J.: The appellant was convicted of theft by public servant contrary to ss. 272 and
277 of the Penal Code.

The sum of K1,770.00 was taken by the police from Scott Nyati on 29th November, 1976,
to the Livingstone Police Station where it was retained pending investigations that were
then being undertaken Detective Chief Inspector Nyirongo took the money from Nyati and
handed it to Constable Mutono; the money was in ten kwacha notes and the numbers of the
notes were recorded and entered in an exhibit register. It was then handed to the appellant
who signed the register and entered the numbers of the notes in the safe cash book. On
17th March, 1977, Mr E. J. Mufana, who was then a Chief Inspector in the Zambia Police,
was ordered to take over the duties of Officer-in - Charge of the Livingstone Police Station
from the appellant. The contents of the safe were removed in the presence of Mufana, the
appellant and Assistant Superintendent Lwenje and recorded on another piece of paper by
Mufana as the safe cash book was in the custody of the court as an exhibit. Both the
appellant and Mufana signed this piece of paper and it was then typed and produced in
evidence as Exhibit P4; the original manuscript was subsequently either lost or destroyed.
The appellant was asked to prepare a handing-over certificate, as is required by Force
Standing Orders, but this was not done. Mufana said that the sum of K1,770.00 was not
part of the contents of the safe that were handed over to him, and this was confirmed by
Lwenje. After the appellant and Lwenje left the office, Inspector Mufanga was asked by
Mufana to help in again checking the contents of the safe. The former had already
completed Exhibit P4, and the contents were again checked with it. On the 31st March,
1977, this witness handed over the contents of the safe to Inspector Kufanga when the
latter assumed the duties of Mufana on the latter's retirement; the contents were again
checked from the exhibit and found to be correct.

Nyati made several requests for the return of his money and when the appellant was
cautioned by Assistant Superintendent Mapani, before being asked about the missing
money, he admitted having received it but denied having stolen it.

In his defence, the appellant said the money was in an envelope together with other
moneys that were in separate envelopes in the safe when Mufana took over its contents
from him on the 17th March, and that he did not prepare a handing-over certificate as he
should have done because of other matters with which he was concerned at the time, but
added that he had not been asked to prepare such a document.

In arguing the appeal, Mr. Rathanraj submitted that the evidence against the appellant is
unsatisfactory and unreliable; he pointed out that Mufana is a witness with a purpose of his
own to serve; that Lwenje was unhelpful in that he did not remember what were the
contents of the safe that were handed over by the appellant, and his evidence was flimsy;
that the request by Mufana that Kufanga assist in checking the property handed over was
suspicious in that this had already been done a few minutes beforehand; and that Kufanga's
assistance was limited to stapling envelopes in which the exhibit money had been placed.
Mr Rathanraj severely criticised the prosecution for not producing the original sheet of paper
on which Mufana had recorded the items taken from the safe. The appellant had said that
the entire contents of the safe had originally been recorded on that piece of paper, including
the sum of K1,770.00, but this latter amount was admitted from Exhibit P4; the exhibit
should not have been amitted in evidence; Mrs Kachese, the person who was alleged to
have typed it from the original list, was not called as a witness, and in the absence of the
original the court must draw an inference that such evidence was favourable to the
appellant.

Provided it can be established that an original document is lost or cannot be produced,

secondary evidence of the original is admissible and such secondary evidence may either be
in the form of a copy of the original or by the oral evidence of a person who can remember
its contents. Learned state advocate, after examining the exhibit, acknowledged that it was
not a copy of the original hand-written record of the contents of the safe; that is, it was not
a document that was shown to have been checked against the original, and its reception as
secondary evidence was, therefore, wrong.

In R.v Nowaz (1) an application form for a passport could not be produced in court because
the person who had possession of the form claimed diplomatic immunity. James, L.J., in
delivering the judgment of the Court of Appeal at p. 7, said:

"It appears that there is a dearth of authority in relation to the reports on criminal
proceedings on this particular topic. There are cases which we have not found it necessary
to consider in detail which involved the civil law and evidence admissible in civil proceedings
which clearly show that in circumstances such as those where a document is not produced
because it cannot be produced - because the person in whose custody it is cannot be
compelled to produce it - then the secondary evidence is admissible. A general statement of
the law can best be summarised, we think, in a passage to which our attention was invited
in Professor Sir Rupert Cross's book on Evidence, 4th Edition (1974) pp. 524, 525, under
the heading 'Stranger's Lawful Refusal to Produce Document', which reads:

' When the original of a document is in the possession of a stranger to the

litigation, the proper course for the party desiring to prove the contents of the document is
to serve the stranger with a subpoena duces tecum. The stranger may, however, be able to
establish a claim to privilege in respect of the document when secondary evidence of its
contents becomes admissible.'

Relating that to criminal proceedings, subpoena duces tecum referred to is the

equivalent of a witness summons requiring the attendance of a witness and production by
the witness of the documents. That was complied with in this case we are told. The passage
goes on:

' The governing principle is the same as that which covers the next two
exceptions. . . (I interpolate, those are the exceptions of lost document and production of
the original document being impossible; returning to the text:) it is impossible to compel
production of the document, and it will apply in cases in which the person in possession of
the original is beyond the jurisdiction of the court . . . ' "

and at the bottom of the same page:

"In a footnote Professor Cross lists the principal distinguishing features of criminal
cases, which listed features do not include the matter of when secondary evidence is
admissible. That secondary evidence can take one of different forms; it may be a copy of a
document, it may be oral evidence as to the contents of the document."

Before secondary evidence of a lost document can be admitted, the court must be satisfied
that the document cannot be found; the question whether an adequate search has been
undertaken is a matter for determination by the court. Mufana, who prepared the original,
said in evidence that the original was lost and, on a second occasion, that he thought that it
had been destroyed. This evidence could hardly be considered adequate to satisfy the trial
court that a proper search had been undertaken and that the original could not be produced
at the trial. Best, J., in Brewster v Sewell (2) at p. 674, said:

"It is very difficult to lay down any general rule as to the degree of diligence
necessary to be used in searching for an original document, to entitle the party to give
secondary evidence of its contents. That must depend, in a great measure, upon the
circumstances of each particular case. If a paper be of considerable value, or if there be
reason to suspect that the party not producing it has a strong interest which would induce
him to withhold it, a very strict examination would properly be required; but if a paper be
utterly useless, and the party could not have any interest in keeping it back, a much less
strict search would be necessary to let in parol evidence of its contents."

Without evidence of a proper search, oral evidence of the contents of the original was also
inadmissible.

The purpose of the evidence of the contents of the original document was to corroborate the
evidence of Mufana that he did not receive into his custody the sum of K1,770.00 from the
appellant. The learned trial magistrate correctly warned himself of the necessity of treating
Mufana's evidence with caution in view of his own possible interest. Lwenje was present
when the safe was opened and Mufana recorded its contents; he did not see the money
taken from the safe. The safe contained sums of money totalling just over K46.00, some
foreign currency, and few other miscellaneous items. Although Lwenje could not recall
details of its contents, there can be no doubt that he would have clearly remembered seeing
one hundred and seventy-seven K10 notes if they had been removed from the safe and
their numbers then individually recorded by Mufana; and it was surprising for the appellant
to have said to Assistant Superintendent Mapani: "It is me who received the money and you
are just worrying Mufana who does not know anything about the money" if Mufana was
either entirely or partially responsible for its loss, which the appellant now suggests.

The learned trial magistrate found that Exhibit P4 was corroborative evidence of the fact
that the money was not part of the safe's contents taken over by the appellant, but I am
satisfied that although this evidence should not have been admitted, there was ample other
evidence which corroborated that of Mufana and upon which the court could convict the
appellant of the offence of theft by public servant, and that the trial court would have
reached the same conclusion it did even if this inadmissible evidence had been excluded.

I dismiss the appeal against conviction.

The learned trial magistrate noted that this type of offence is prevalent in Zambia. On the
other hand, the appellant is a first offender and a senior officer in the Zambia Police.
Bearing these matters in mind, I cannot say that the sentence of three years' imprisonment
with hard labour is manifestly excessive, and I dismiss the appeal against sentence as well.

Appeal dismissed

JAMES CHIBANGU v THE PEOPLE (1978) Z.R. 37 (S.C.)

SUPREME COURT
SILUNGWE, C.J., CHOMBA AND GARDNER, JJ.S.
24TH JANUARY, AND 23RD MARCH, 1978
(S.C.Z. JUDGMENT NO. 11 OF 1978)

Flynote

Criminal law and procedure - Murder - Provocation -Reasonable relationship rule - Test for
reasonableness of accused's conduct - Whether reasonableness to be tested with regard to
ordinary persons of accused's community or whether with regard to average member of a
modern society.

Headnote

The appellant was convicted of the murder of his wife. It was found that on his return home
one evening he was assaulted by his wife and her sister's two daughters; the assault was
with bare hands and with a cooking pot which caused a cut on the appellant's lip. The
appellant went into his house, fetched a .22 rifle and shot his wife; she died seven days
later from the injury.

The trial judge, having held that the defences of drunkenness and self-defence were not
available, considered the defence of provocation; he held that although there had been
provocation the shooting of the deceased bore no reasonable relationship to the
provocation.

Held:
(i) It is a condition precedent to the reduction of a charge of murder to
manslaughter that the court must be satisfied that the act which caused the
death bore a reasonable relationship to the provocation.

(ii) Not only the provocation itself but also the reasonableness of the retaliation
must be tested with regard to ordinary persons of the community of the
accused, since the provisions of section 206 of the Penal Code would in this
regard be "useless if, having tested the likelihood to assault by the reaction of
one sort of ordinary person, the court was obliged to adopt a different
standard in judging of the reasonableness of what was done".

Dictum of Clayden, F.J., in Chibeka (3) cited with approval; Mutambo v

The People (5) disapproved.

(iii) In Zambia the test for provocation is objective but only in a limited
sense in that it is of a parochial nature, namely, faced with similar
circumstances can it be said that an ordinary person' of the accused's
community might have reacted to the provocation as the accused did?

Cases cited:

(1) Phillips v R. (1969) 53 Cr. App. R. 132.

(2) Milambo v The People (1977) Z.R. 103.
(3) Chibeka v R. 1959 (1) R. & N. 476.
(4) Greyson v R. 1961 R. & N. 337.
(5) Mutambo v The People (1905) Z.R. 15.
(6) Walker v R.(1969) 53 Cr. App. R. 195.

Legislation referred to:

Penal Code, ss. 205, 206.

For the appellant: C.K. Banda, Legal Aid Counsel.

For the respondent: G.T. Moruthane (Miss), State Advocate. 10

Judgment

SILUNGWE,C.J., delivered the judgment of the court.

The appellant was convicted of murdering Monica Mutale, his wife, on 28th October, 1975.
Very briefly the circumstances leading to the deceased's death were these. On 21st
September, 1975, the appellant left his home in order to go and grind maize. Whilst away
he consumed 40n worth of beer. He returned home at about 1830 hours; he knocked at
the door of his house thrice and when there was no answer he started to look for keys on
the assumption that the wife was not at home. Shortly thereafter he was taken unaware by
his wife who had emerged from the house when she pushed him to the ground causing him
to sustain some bruises. As he attempted to rise, his wife hit him with something on the
mouth resulting in a cut on the lip. His wife then called her sister's two daughters who came
and joined her in assaulting him. The appellant entered his house, fetched a .22 rifle and
with it he shot his wife injuring her. She was taken to hospital where she died seven days
later as a result of bullet injury to the spine.

At the trial three defences were raised, to wit, drunkenness, self defence and provocation.
In a very careful judgment the learned trial judge dealt with each one of these defences and
then held, quite rightly, that the defences of drunkenness and self-defence were not
available. With regard to provocation the learned trial judge said, in part:

"I would without hesitation hold that accused was beaten up to the extent which
would make a reasonable person lose his self control, and further find that accused in fact
lost his control before he entered his house and came out with a rifle and shot at the
deceased. Section 205 (2) of the Penal Code, however, requires that for a killing to
be reduced from murder to manslaughter on the grounds of provocation the act which
causes death should bear a reasonable relationship to the provocation. If accused was in
possession of his rifle before and at the time when he was being beaten up and then fired it
while in the heat of the moment, I would have no difficulty in holding that the mere fact
that a rifle was used in killing did not make such a difference and that the defence of
provocation would be available. But the present facts are that accused, even though he had
lost his self-control, . . .decided... that he would shoot at his wife, the deceased, who had
started the attack on him. "

The learned trial judge held that although there had been provocation in this case, the
shooting of the deceased by the appellant bore no reasonable relationship to the
provocation offered to him and that consequently there was no basis upon which the charge
could be reduced to is one of manslaughter.

Learned counsel for the appellant, Mr Banda, has urged upon us that the defence of
provocation ought to have succeeded mainly on the ground that after the appellant had
been provoked he fetched a gun from his house and with it shot his wife, before there was
time for his passion to cool. His argument was that when a man is provoked and loses
self-control he has no ability to choose what mode of retaliation to use. As Lord Diplock
aptly put it in Phillips v R. (1), at p. 135:

"Before their Lordships, counsel for the appellant contended, not as a matter of
construction but as one of logic, that once a reasonable man had lost his self control his
actions ceased to be those of a reasonable man and that accordingly he was no longer fully
responsible in law for them whatever he did. This argument is based on the premise that
loss of self control is not a matter of degree but is absolute: there is no intermediate stage
between icy detachment and going berserk. This premise, unless the argument is purely
semantic, must be based upon human experience and is, in their Lordships' view, false. The
average man reacts to provocation according to its degree with angry words, with a blow of
the hand, possibly, if the provocation is gross and there Is a dangerous weapon to hand,
with that weapon."

Section 205 of the Penal Code provides as follows:

"205. ( 1 ) When a person who unlawfully kills another under circumstances which,
but for the provisions of this section, would constitute murder, does the act which causes
death in the heat of passion, caused by sudden provocation as hereinafter defined, and
before there is time for his passion to cool, he is guilty of manslaughter only.

(2) The provisions of this section shall not apply unless the court is satisfied that the
act which causes death bears a reasonable relationship to the provocation."

On a reading of this section, it is clear that Mr Banda's argument falters on account of the
fact that it ignores the "reasonable relationship rule" contained in the second subsection.
Although prima facie a charge of murder reduces itself to one of manslaughter, once it is
established that as a result of sudden provocation offered to the accused, and that the
accused, whilst in the heat of passion, did an act that caused the death of another before
there was time for his passion to cool, in reality, however, it is a condition precedent to the
reduction of the charge of murder to manslaughter that the court must be satisfied that the
act which caused the death bore a reasonable relationship to the provocation. In support of
his argument Mr Banda has cited the case of Milambo v The People (2) - a decision of this
court. The facts of that case were briefly these. The appellant, a soldier in the Zambia Army,
was found hiding under the bed of a woman who was not his wife, in a state of undress -
circumstances that obviously suggested that he had been committing adultery. A relative of
that woman, having so found the appellant, started beating him as a result of which the
appellant fled and swam naked across the Zambezi River. He was followed across the river
in a canoe by the woman's relative and another witness and he was once again beaten and
was brought back; on the way back the two men continued to beat him. When the appellant
was eventually brought back he was crying. Then a hostile crowd of people gathered round
the army vehicle in which the appellant and another soldier had been travelling. At that
stage "the appellant was a very frightened man". At least one man in the crowd that
surrounded the appellant was holding a panga. The learned trial judge found that the
appellant had "developed a rage . . . for the experiences he had been subjected to". The
appellant took his army gun from the cab of the vehicle and when he opened fire the
deceased was shot dead. In those circumstances, it was held that the mode of retaliation
was not out of proportion to the provocation offered As Lord Diplock stated in Phillips (1),
the average man reacts in different ways according to the degree of provocation offered and
if it is gross he might react by using a dangerous weapon if it is to hard. We distinguish that
case on the ground that in the particular circumstances of that case the mode of retaliation
bore a reasonable relationship to the provocation. In the present case, however, to be
beaten by three women with no evidence of their being armed was found by the learned
trial judge not to be such provocation that a charge of murder should be reduced to one of
manslaughter and there is no reason for us to disagree.

In this case there is no express finding to the effect that at the juncture that the appellant
shot his wife there had not been time for his passion to cool. As we read the judgment of
the learned trial judge it is obvious that he was satisfied that provocation had been
established in terms of s. 205 (1) of the Penal Code, but that the defence failed on the
grounds that the shooting of the deceased did not bear a reasonable relationship to the
provocation offered to the appellant.

This now brings us to a consideration of the "reasonable relationship rules". The provocation
here took the form of an assault upon the appellant. Miss Moruthane's submission is that
the appellant's retaliation was out of proportion to the provocation offered that the three
women assaulted him with bare hands. However, the evidence is itself silent on whether or
not anything was used other than bare hands with the possible exception of the occasion
when the deceased hit the appellant with some thing on the mouth causing him to sustain a
cut on the lip. The appellant reacted to the provocation by resorting to the use of a firearm
which resulted in the death of his wife. The question is: did that shooting bear a reasonable
relationship to the provocation?

In Chibeka v R. (3) the appellant inflicted twenty-three axe wounds on his wife causing her
death. Prior to the death a Chief's Court had awarded the appellant 7 pounds for the wife's
adultery with the son of a wealthy man. Shortly before she was killed she told the appellant
that she would leave him in order to marry the other man. Thereupon the appellant
"completely lost his temper" and killed her by inflicting twenty-three axe wounds on the
head, back and limbs. The High Court of Northern Rhodesia convicted the appellant of
murder holding that the defence of provocation was insufficient on two grounds: first, that
provocation was not sudden, and second, that what was done was out of proportion to the
provocation offered. On appeal, the majority of the Federal Supreme Court (Clayden, F.J.,
and Tredgold, C.J., with Briggs F.J., dissenting on the narrow issue as to the application of
the proviso) held that there was evidence of provocation but that the acts of the appellant
bore no reasonable relationship to the provocation offered. In considering ss. 182 and 183
of the Northern Rhodesia Penal Code, which are now reproduced in ss. 205 and 206,
respectively, of the present Penal Code, Clayden, F.J., said:

"Although there is no express connection between the requirement in section 182 (2)
that the retaliation should bear a reasonable relationship to the provocation and the
provision under section 183 that the 'ordinary person' to whom regard is had is one of the
community of the accused, reasonableness must, I consider, be tested with regard to
ordinary persons of the community of the accused. The provisions of section 183 in this
regard would be useless if, having tested the likelihood to assault by the reaction of one sort
of ordinary person, the court was obliged to adopt a different standard in judging of the
reasonableness of what was done."

Chibeka (1) was cited with approval by the Federal Supreme Court (Clayden F.C.J., Briggs
and Quenet, F.JJ.) in Greyson v R. (4). There it was recalled that in England the law
requires that provocation must be both grave and sudden. Briggs, F.J., said at p. 343 letters
D to G:

"Again the requirement of gravity in England has directly brought into consideration
questions of relative gravity. Judges constantly say that what was done was 'out of all
proportion to the gravity of the provocation', or that 'the provocation was not of such
gravity as to bear any reasonable relation to the acts of the accused'. I think this may help
to explain the . . . subsections, and to reinforce the views we expressed in Chibeka's case
(1), that the subsections really mean that one must consider the whole of the provocation
given and the whole of the accused's reaction to it, including the weapon, if any, used, the
way it came to hand, the way it was used, and every other relevant factor and must finally
decide whether an ordinary man of the accused's community - with his ordinary allowances
of human wickedness - might have done what the accused did."

In Mutambo v The People (5) Charles, J., commenting upon the meaning of the term
"reasonable" as used in the subsections, expressed the view that although he himself had
recently followed Greyson's case (4) that case (Greyson) should not be followed, on the
ground, as he put it at p.38, that -

"While provocation itself must be determined by reference to the reactions of an

ordinary or average member of the accused's community, 'the reasonable relationship' of
the force used to the provocation must be determined by reference to the reactions of the
average member of a modern society; and Greyson's case (2), to the contrary should not be
followed."

With due respect we think that the better view is as expressed by the Federal Supreme
Court in Chibeka's case (3), namely, that reasonableness must be tested with regard to
ordinary persons of the community of the accused since the provisions of s. 206 would in
this regard be "useless if having tested the likelihood to assault by the reaction of one sort
of ordinary person the court was obliged to adopt a different standard in judging the
reasonableness of what was done".

The reasonable relationship rule is important in that it provides a measurement as to the

mode of resentment or retaliation on the one hand and the nature and degree of
provocation on the other. As the Court of Appeal in England succinctly put it in Walker v R.
(6) at p. 202:

"It has never been the law that the man who completely loses his temper on some
trivial provocation and reacts with gross and savage violence which kills his victim can hope
for a jury to find a verdict of manslaughter on grounds of provocation."

In Zambia the test for provocation is objective but only in a limited sense in that it is of a
parochial nature, namely, faced with similar circumstances can it be said that an ordinary
person of the accused's community might have reacted to the provocation as the accused
did?

As already stated the learned trial judge held in this case that the shooting of the deceased
by the appellant bore no reasonable relationship to the provocation offered; consequently,
the defence of provocation was not available to the appellant. We cannot say that the
learned trial judge in any way erred by arriving at that conclusion. The appeal must
therefore be dismissed.

Appeal dismissed

TELEVISION CHIBUYE v THE PEOPLE (1978) Z.R. 43 (H.C.)

HIGH COURT
CULLINAN, J.
24TH FEBRUARY, 1978
(HPA/36/78)

Flynote

Criminal law and procedure - Grievous harm - Loss of teeth - S. 4 of the Penal Code, Cap.
146 - Whether it constitutes permanent disfigurement.
Criminal law and procedure - Grievous harm - Penal Code, Cap. 146, s. 4 - Interpretation -
Intention of legislature.

Headnote

The appellant had butted the complainant with his head in the face and caused her to lose
her teeth. He was charged with doing grievous harm and was convicted. On appeal it was
considered whether the loss of teeth constituted grievous harm as defined under s. 4 of the
Penal Code, Cap. 146.

Held:
(i) Loss of teeth does not constitute a "permanent disfigurement" and cannot be
considered as permanent or serious injury to any external or internal organ
member or sense as specified in s. 4 of the Penal Code, Cap. 146.

(ii) The legislature did not intend to give a strained interpretation to the term
"grievous harm". The legislature intended that the harm must be really
serious.

Legislation referred to:

Penal Code, Cap. 146, s. 4.

Offences Against The Persons Act, 1861 (England), s. 18.

For the appellant: In person.

For the respondent: A.G. Kinariwala, State Advocate. 10

Judgment

CULLINAN,J.: The appellant was convicted by the subordinate court of the second class for
the Serenje District of doing grievous harm and was sentenced to two and half years'
imprisonment with hard labour.

The complainant suffered harm to the extent that the appellant butted her with his head in
the face and caused her to lose two of her teeth. I doubt if the loss of two teeth constitutes
"permanent disfigurement" as such: cosmetically the teeth can be replaced; I doubt if it
constitutes "permanent or serious injury to any external or internal organ member or sense"
as specified in s. 4 of the Penal Code: once the teeth have fallen out, I cannot see that
there is any permanent injury as such. In any event, I doubt that the legislature ever
intended such a strained interpretation to be given to the term "grievous harm". The term
"grievous bodily harm" contained in s. 18 of the Offences Against The Person Act, 1861,
has been defined in England as meaning really serious bodily harm, but I do not see that
that interpretation can necessarily be applied to s. 4 of the Penal Code, whose terms are
quite specific. As I see it however, reading the definition as a whole, I consider that the
legislature intended that the harm must be really serious harm. I consider it would be
unsafe to allow the conviction to stand. The finding of the court below is set aside and a
conviction of assault occasioning actual bodily harm contrary to s. 248 of the Penal Code is
substituted.

With regard to sentence, as the learned State Advocate Mr Kinariwala has submitted, the
learned trial magistrate does not seem to have taken into account the fact that the
appellant was provoked. In any event an offence under s. 248 carries a lesser sentence than
that under s. 229 of the Penal Code. The sentence of the court below is set aside and a
sentence of nine months' imprisonment with hard labour, with effect from 10th October,
1977, is substituted.

Appeal allowed

PETER LIFUNGA MACHILIKA v THE PEOPLE (1978) Z.R. 44 (S.C.)

SUPREME COURT
BARON,D.C.J., CHOMBA AND BRUCE-LYLE JJ.S.
21ST FEBRUARY, 1978
(S.C.Z. JUDGMENT NO. 9 OF 1978)

Flynote

Evidence - Corroboration - Allegation of rape - Evidence of presence of spermatozoa -

Whether corroboration implicating accused.
Evidence - witness - Professional witness giving factual evidence as to what he has seen -
Witness not questioned or challenged - Rejection of evidence by court - Propriety of.
Evidence - Witness - Untruthful witness - Witness shown to be untruthful in material
respects - Weight to be attached to remainder of his evidence.

Headnote

The appellant was convicted of rape. The trial magistrate regarded it as corroboration of the
evidence of the complainant that a medical examination revealed the presence of
spermatozoa. The magistrate also dismissed the evidence of the doctor who physically
examined the complainant shortly after the alleged rape and found no injuries or evidence
of violence on her by saying that there might well have been injuries under the
complainant's clothes which the doctor did not see.

Held:
(i) Since the pathologist had said in evidence that spermatozoa can live for
several days in the vagina, the medical evidence was no corroboration of the
fact that the complainant had had sexual intercourse with the accused, but
was simply evidence that she had had sexual intercourse with someone within
a period of days prior to the medical examination.

(ii) Since there was no evidence of another doctor on the basis of which the
medical evidence could have been challenged, it was most improper for the
 trial court to reject the evidence of an impartial professional man who was
giving factual evidence as to what he had seen and who was not questioned
or challenged in any way.

(iii) Once a complainant has been shown to be untruthful in very material respects
such as the use of violence, her evidence can carry very little weight, since
her evidence of rape cannot be separated from these allegations of violence.

For the appellant: J.C.K. Mporokoso, Mporokoso & Co.

For the respondent: R.Balachandran, State Advocate.

Judgment

BARON, D.C.J., delivered the judgment of the court.

The appellant was convicted of rape. It is unnecessary to recount the facts in any detail
since there are two very serious misdirections by the learned magistrate; Mr Balachandran,
on behalf of the State, very properly does not support the conviction.

The learned magistrate regarded it as corroboration of the evidence of the complainant that
a medical examination revealed the presence of spermatozoa. He failed however to take
into account that the evidence of the pathologist was that spermatozoa can live for several
days in the vagina. This medical evidence was therefore no corroboration whatever of the
fact that the complainant had had sexual intercourse with the accused, but was simply
evidence that she had had sexual intercourse with someone within a period of days prior to
the medical examination.

Further, the evidence of the doctor who carried out the physical of examination of the
complainant shortly after the alleged rape was that he found no injuries or evidence of
violence on her. The learned magistrate dismissed this evidence by saying that the doctor
did not indicate the nature of the examination and did not say that the complainant had
taken her clothes off to enable the examination to be made, and consequently that there
might well have been injuries under her clothes which the doctor did not see. This is a
totally untenable position for a court to take, the more so since neither the magistrate nor
anybody else asked the doctor to describe the nature of his examination. If there were
evidence of another doctor on the basis of which the medical evidence could have been
challenged the position could have been otherwise; but where an impartial professional man
gives factual evidence as to what he has seen and is not questioned or challenged in any
way it is most improper for a court to reject his evidence. We are quite satisfied that the
finding that the complainant might have had injuries on her which the doctor did not see
was a finding of fact which could not be reasonably entertained on the evidence and which
must be upset by this court.

The evidence is clear, and it is the only evidence on the point save that of the complainant
herself, that she had no injuries or signs of violence on her at the time of the medical
examination. This being so the complainant's evidence cannot be true. Her account of the
events leading up to the alleged rape was such that if it were true she would inevitably have
sustained quite severe injuries; she told the court how she had been assaulted and struck
blows with the fist and how she was dragged through the bush; and she specifically told the
court that her face was swollen.

As we have said on many occasions, once a complainant is shown to be untruthful in very

material respects such as the use of violence her evidence can carry very little weight, since
her evidence of rape cannot be separated from these allegations of violence. This appeal will
be allowed and the conviction and sentence set aside.

Appeal allowed

JOHN MKANDAWIRE AND OTHERS v THE PEOPLE (1978) Z.R. 46 (S.C.)

SUPREME COURT
SILUNGWE, C.J., BARON, D.C.J. AND GARDNER, J.S.
3RD, 4TH MARCH, 1977, AND 27TH JANUARY, 1978
(S.C.Z. JUDGMENT NO. 4 OF 1978)

Flynote

Criminal law and procedure - Conducing to the commission of a criminal offence by

neglecting to exercise due care of a child - Charge of - Juveniles Act, Cap. 217, ss. 73, 74 -
Proper procedure to be followed.
Evidence - Confession - Admissibility - Objection on grounds of coercion - Court entertaining
doubts as to evidence of witnesses involved in taking other statements in course of same
investigation - Effect of.
Evidence - Identification - Single witness - Danger of honest mistake - Necessity for
connecting link between the accused and the offence - Coincidences providing link.
Criminal law and procedure - Court asking questions after conclusion of cross-examination
and re-examination - Necessity to give further opportunity to each side to examine.

Headnote

The first three appellants and a fourth youth, all juveniles, were charged with the murder of
a shopkeeper; at the end of the case for the prosecution the trial court ruled that the case
against the fourth juvenile had not been made out because it was in doubt as to the
voluntariness of the alleged confession, and he was acquitted. The fourth appellant was the
father of the third appellant and the fourth youth; during the investigation and later at the
trial he acted as guardian also of the second appellant.

After a finding of guilty had been entered against the first three appellants, the fourth
appellant was apparently convicted of being an irresponsible parent contrary to ss. 73 and
74 of the Juveniles Act, Cap. 217; the reason was that the police had found a pistol and a
quantity of ammunition buried in the floor of the room in which his sons slept. In spite of
the fact that he pleaded not guilty to the charge the court did no more than ask him two
questions, and without hearing any other evidence dealt with him summarily and
pronounced him guilty and sentenced him.

The allegation against the first three appellants was that they entered a shop owned by the
deceased who was at the time standing behind the counter with his sixteen year old
daughter. The third appellant produced a pistol and another closed the door of the shop.
The deceased tried to come out from behind the counter whereupon the third appellant fired
twice into his chest. The three appellants immediately ran away. The first appellant,
although he was not seen actually leaving the shop, was seen running from that direction by
a witness whose parents' shop was about twenty-two metres away and who chased and
apprehended the first appellant; as a result of inquiries the second and third appellants and
the fourth youth were apprehended. The first three appellants were all identified by the
deceased's daughter. It was argued that this identification by a single witness was unsafe,
and particularly in the case of the first appellant who had been seen by the witness in the
custody of the police immediately after the shooting when he was apprehended and
brought back to the shop. It was argued also that the confessions alleged to have been
made voluntarily by the three appellants were in fact made under duress and should not
have been admitted in evidence.

Held:
(i) Where a parent pleads not guilty or says something that amounts to a plea of
not guilty to a charge of conducing to the commission of a criminal offence by
neglecting to exercise due care of his child, it is incumbent upon the court to
enter a plea of not guilty; the prosecution will then adduce evidence against
the accused parent and the procedure applicable to criminal trials will apply to
him.

(ii) When a court rejects a statement because it is not satisfied that the police
officers taking the statement were telling the truth care must be taken by the
court before accepting the evidence of the same police officers about the
taking of other statements.

Cosmas Haonga and Ors v The People (1) followed.

(iii) The evidence of a single identifying witness must be treated with the greatest
caution because of the danger of an honest mistake being made.

(iv) Usually this possibility cannot be ruled out unless there is some connecting
link between the accused and the offence which would render a mistaken
identification too much of a coincidence.

Bwalya v The People (3) followed.

(v) The evidence of the discovery of a pistol and rounds of ammunition hidden in
the room of two of the accused persons would not, standing alone, have
constituted a sufficient link, but when considered in the light of all the other
evidence it constitutes an item of evidence which cannot be ignored and
which goes to support the other evidence.

(vi) Odd coincidences can, if unexplained, be supporting evidence for an

Identification.

Dictum of Lord Widgery, C.J., in R. v Turnbull (4) adopted.

(vii) (Per Baron, D.C.J.) When a court entertains doubts concerning the
voluntariness of a statement which necessarily involve doubts as to the
truthfulness of the witnesses who consistently denied having used force, it is
impossible for the court not to entertain similar doubts concerning the
truthfulness of those same witnesses in respect of their evidence concerning
events which took place at substantially the same time and in the course of
the same investigation. Although the trial court did not hold the witnesses in
question to be untruthful concerning the events surrounding the statement of
the fourth accused, the circumstances in which that statement and those of
 the second and third appellants were taken and the evidence in relation
thereto were such that a doubt as to voluntariness in the one case must
necessarily give rise to the same doubt in the others.

(Per Curiam)

(a) It was not proper for the doctor who conducted the post-mortem
examination on the deceased's body to refrain, because he did not
wish to offend the deceased's relatives by mutilating the body, from
recovering the bullet which he was aware had lodged in the deceased's
spine. The honouring of the feelings of relatives of a dead person
should not be done at the expense of promoting the interests of justice
through thorough investigation of a criminal offence.

(b) When the court after the completion of the cross-examination and
re-examination asks the witness certain questions the proper
procedure is to give an opportunity to each side to examine such
witness in the ordinary way if it so wishes.

Cases referred to:

(1) Cosmas Haonga and Ors v The People (1976) Z.R. 200.
(2) Chimbini v The People (1973) Z.R. 191.
(3) Evaristo Bwalya v The People (1975) Z.R. 227.
(4) R. v Turnbull [1976] 3 All E.R. 549.
(5) Phiri (E) and Ors v The People (1978) Z.R. 79.
(6) Nachitumbi and Anor v The People (1975) Z.R. 285.

Legislation referred to:

Juveniles Act, Cap. 217, ss.73 and 74.

For the appellant: Mrs F. N. Mumba, Senior Legal Aid Counsel.

For the respondent: K.R.K. Tampi, State Advocate.

Judgment

SILUNGWE, C.J.: The first three appellants plus Timothy Tembo - all juveniles - appeared
before the High Court on a charge of murdering an Asian called Seleju Mehmud Bharuchi,
hereinafter referred to as the deceased. At the end of the case for the prosecution, the trial
court ruled that the case against Timothy Tembo had not been made out and so he was
acquitted. The charge against all the first three appellants was found proved against each
one of them. The fourth appellant, White Tembo, is the father of (Timothy Tembo and)
Mathias Tembo the third appellant.

At an identification parade, and later at the trial, White Tembo acted as guardian of Zakeyo
Ngoma, the second appellants White Tembo was not jointly charged with the juveniles but
was, after the charge had been found proved against his son Mathias Tembo, apparently
convicted of being an irresponsible parent, contrary to ss. 73 and 74 of the Juveniles Act,
Cap. 217; White Tembo was then sentenced to a fine of Kl,000 and in default of payment to
undergo a term of imprisonment for one year.
We propose to deal with White Tembo, John Mkandawire, Zakeyo Ngoma and Mathias
Tembo in that order.

At the beginning of the hearing we allowed the appeal in respect of White Tembo and said
that we would give reasons at a later date. We now give those reasons.

Briefly, the prosecution evidence, which was believed by the trial court, clearly showed that
a pistol and some rounds of ammunition had been found recently buried under the floor in a
room of White Tembo's house. This was a two-roomed house with no communicating door
between the rooms. White Tembo's children lived in one of the rooms whilst the parents
lived in the other. The following is the relevant portion of the case record.

"Ct: Mr White Tembo I find that when the police went to your house they
found a pistol and a lot of ammunition buried in your house. The law says that where a
parent is irresponsible the Court has powers to punish the parent. Can you give me any
reason why I should not punish you?
Mr Tembo: I would not know anything about that My Lord because the police did
not call and show me what they found in my house.
Ct: Does your wife not sweep the house?
Mr Tembo: No My Lord, my wife does not sweep. It is the boys who sweep for
themselves."

Thereafter the learned commissioner made a finding, namely, that White Tembo was an
irresponsible parent who clearly knew, or encouraged his children, to bury the firearm and
rounds of ammunition in his house. The following passage appears in his ruling:

"I do not understand how a child could start digging a parent's home and bury a
pistol and rounds of ammunition without the parent's knowledge. It is quite obvious that
this gave encouragement to your children and they killed a person . . . You could have
averted this situation if you had taken all these things away from your children. You seem
to have been building up a small armoury in order to terrorise other people."

Quite clearly there was no evidence upon which the learned trial commissioner could base
that finding. There was nothing to show that White Tembo either knew of the presence of
the pistol and/or of the rounds of ammunition in the room occupied by his children or that
he in any way encouraged them to bring those items into their room. Further, there is not a
particle of evidence to suggest that White Tembo was, as the learned commissioner put it,
"building up a small armoury in order to terrorise other people". The learned commissioner's
finding was therefore a misdirection on the facts.

Admittedly ss. 73 and 74 of the Juveniles Act, Cap. 217, empower courts to, inter alia, fine
a parent or guardian of a juvenile offender if such parent or guardian is found to have
conduced to the commission of the offence by neglecting to exercise due care of the
juvenile. Quoting only the relevant parts of these sections they read as follows:

"73. (1) Where a juvenile charged with any offence is tried by any court, and the
court is satisfied of his guilt, the court shall take into consideration the manner in which,
under the provisions of this or any other written law, the case should be dealt with, namely
-
(g) by ordering the parent or guardian of the offender to pay a fine, damages or
costs;
 74. (1) Where a court thinks that a charge against a juvenile is proved, the court
may make an order on the parent or guardian of the juvenile under the last preceding
section for the payment of a fine, damages or costs or requiring him to give security for
good behaviour, with or without proceeding to the conviction of the juvenile:

Provided that no such order shall be made unless the court is satisfied that the
parent or guardian has conduced to the commission of the offence by neglecting to
exercise due care of the juvenile.

(2) An order made under the last preceding section may be made against a
parent or guardian who, having been required to attend, has without reasonable excuse
failed to do so, but save as afore-said no such order shall be made without giving the parent
or guardian an opportunity of being heard."

But as previously pointed out there was no evidence whatsoever to show that White Tembo
had in any way conduced to the commission of the offence by neglecting to exercise due
care of his son Mathias Tembo. Evidently the trial court was here guilty of a serious
misdirection on the law. This misdirection was most unfortunate, inevitably resulting, as it
did, in grave injustice being occasioned to White Tembo in that he suffered imprisonment in
default of payment of the fine and lost his job.

It is necessary to stress that the administration of justice calls for the exercise of the
highest degree of prudence. Where a parent, as in this case, pleads not guilty or says
something that amounts to a plea of not guilty to a charge of conducing to the commission
of a criminal offence by neglecting to exercise due care of his child, it is incumbent upon the
court to enter a plea of not guilty; the prosecution will then adduce evidence against the
accused parent and the procedure applicable to criminal trials will apply to him. There was
no such procedure adopted in the instant case. In spite of the fact that White Tembo
pleaded not guilty to the charge the court, without hearing evidence, summarily dealt with
him, pronounced him guilty and sentenced him. The procedure that ought to have been
followed was thus short-circuited to the detriment of the accused parent. In the result the
prosecution were quite improperly relieved of their burden of proof which squarely rested
upon them. For the reasons given, the appeal by White Tembo was allowed and the finding
had to be set aside.

We now turn to the appeals by the three juveniles. At the trial the juveniles were aged as
follows : John Mkandawire 17 years, Zakeyo Ngoma 15 years and Mathias Tembo 16 years.
Shortly, the case against these three appellants was that on 1st February, 1975, at 1630
hours, they all went to a shop owned by the deceased. When they entered the shop John
Mkandawire and Mathias Tembo proceeded to the counter behind which were standing the
deceased and his 16-year-old daughter Sara Seleju Bharuchi, PW7; Zakeyo Ngoma
remained at the door. Sara told the trial court that after the three appellants had been in
the shop for some three to four minutes Mathias Tembo, who suddenly produced a pistol,
told the deceased not to shout. Zakeyo Ngoma then closed the door. The deceased tried to
quickly get out from behind the counter but as he did so Mathias Tembo fired into his chest
twice. Immediately thereafter all the three juveniles rushed out of the shop. The deceased
quickly Stalked towards the door but collapsed in the doorway and fainted.
Sara shouted for help and a police Land - Rover which was passing by stopped. The
deceased was conveyed to the hospital where, on arrival, he was pronounced dead.

Alfred Motolo Mpebe, PW1, whose parents' shop is about twenty-two metres from that of
the deceased, having heard a bang from the direction of the deceased's shop, saw a boy,
whom he identified as John Mkandawire, running away from that direction upon the crown
of the road. He helped to apprehend John Mkandawire who was then taken back to the
deceased's shop where he was handed to the police. Sara, who saw John Mkandawire being
handed to the police, identified him as one of the three juveniles who had just been
involved in the shooting incident in her father's shop.

On the following day, 2nd February, Zakeyo Ngoma and Mathias Tembo were also
apprehended and a properly conducted parade was held at the police station at which Sara
picked out all the three juveniles. We are satisfied that no criticism can be levelled at the
manner in which the identification parade was conducted. In relation to John Mkandawire,
however, the identification on that occasion was weakened by the fact that the identifying
witness, Sara, had seen him when he was brought back to the shop shortly after the
incident; that resulted in her father's death.

According to the prosecution evidence which was accepted by the trial court, all three
juveniles made confessions to the police. Mrs Mumba, learned counsel for the juvenile
appellants, contended before us that those confessions ought not to have been admitted in
evidence on the ground that they had been beaten out of the appellants and were therefore
involuntary.

During John Mkandawire's trial-within-the-trial, his father George Mkandawire, who was
called by the prosecution, testified that he was present when his son made the confession to
the police and that the son was not subjected to any beating by the police at the time.
However, when John Mkandawire gave evidence, he said that the police assaulted him at
the police station when a statement was being recorded from him and that his uncle,
Kumbukilani Mkandawire, was present but that his father was not. This evidence was in
direct conflict not only with the testimony of his father and of two police witnesses, but also
with that of his uncle Kumbukilani Mkandawire, all of whom spoke of the presence, at the
material time, of John Mkandawire's father. It is obvious that John Mkandawire lied when he
testified before the trial court that his father had not been present at the time that the
confession statement was recorded from him. Indeed, that confession statement bears
George Mkandawire's endorsement. The learned commissioner ruled, as he was fully
entitled to do, that the confession by John Mkandawire had been made freely and
voluntarily and he accordingly admitted it in evidence. We would wish to add that even if
the evidence of this appellant's confession were non-existent or rejected, the remainder of
the evidence would still have been sufficient to warrant a finding of guilt against John
Mkandawire As regards this appellant, therefore, we consider that the trial court's finding of
guilt was inevitable and there is no basis upon which that finding can be disturbed.

The second and third appellants also made statements as did a co-accused named Timothy
Tembo. They objected to the production of their confession statements on the ground that
they had been obtained under duress. A trial-within-a-trial was held in respect of each of
the parties who objected on this ground. The learned trial commissioner found that the
statement of Timothy Tembo could not be admitted in evidence since he was in doubt as to
whether the two police officers who gave evidence about the taking of the statement were
telling the truth when they said that the statement was made voluntarily. This court has
said before in the case of Cosmas Haonga and Ors v The People (1) that when court
rejects a statement because it is not satisfied that the police officers taking the statement
were telling the truth, care must be taken by the court before accepting the evidence of the
same police officers about the taking of other statements. In this case the same police
officers took statements from he second and third appellants, both of whom complained
that they had been ill-treated when their statements were being taken. In admitting the
statements of these appellants the learned trial commissioner said that he was unable to
see how senior officers could have perjured themselves when they refuted the allegations of
the use of force. This comment was in conflict with the learned commissioner's finding that
he was unable to accept beyond reasonable doubt the evidence of the same police officers
in connection with the statement taken from Timothy Tembo. There was therefore a
misdirection with regard to the acceptance in evidence of the two alleged confessions. In
view of the fact that the learned commissioner misdirected himself, as we have said, the
confessions of the second and third appellants should not have been admitted in evidence.

However, the case against Zakeyo Ngoma and Mathias Tembo does not end there. There is
the evidence of identification of these juveniles by Sara, the only eye witness. But this is
evidence of a single identifying witness and, as we have said previously in a number of
cases, such evidence must be treated with the greatest caution because of the danger of an
honest mistake being made.

In Chimbini v The People (2) we said:

"It is always competent to convict on the evidence of a single witness if that

evidence is clear and satisfactory in every respect; where the evidence in question relates to
identification there is the additional risk of an honest mistake, and it is therefore necessary
to test the evidence of a single witness with particular ...care "

And in Evaristo Bwalya v The People (3) we said:

"Usually in the case of an identification by a single witness this possibility cannot be

ruled out unless there is some connecting link between the accused and the offence which
would render a mistaken identification too much of a coincidence . . ."

In the case under consideration there is supporting evidence of a connecting link. There was
evidence of association, to wit, at the material time John Mkandawire, Zakeyo Ngoma and
Mathias Tembo were all friends who played together. The three of them lived in the same
compound - Garden Compound, Lusaka - and not far from one another; in point of fact
Zakeyo Ngoma and Mathias Tembo lived next door to each other. In our view, it was an odd
coincidence that Sara should have identified all these three juveniles who were not only
friends but also lived in the same township close to one another, one of whom, John
Mkandawire was caught in the act of running away from the scene of the crime which was
only some twenty-two metres away and, in the room occupied by the other - Mathias
Tembo, who, according to Sara, produced a pistol and twice fired into the deceased's chest -
was found recently concealed under the floor, a pistol and rounds of ammunition. As lord
Widgery, C.J.,. put it in R. v Turnbull (4) at p.553:

"Odd coincidences can, if unexplained be supporting evidence."

The coincidence of association in this case has not been explained by any of the appellants
neither has Mathias Tembo explained the concealment of the pistol. We regard the
coincidences as testimony in support of the evidence of Sara, the single identifying witness.
Despite the misdirection of admitting the confession statement, to which we have already
referred, we are quite satisfied that had he properly directed himself, the learned trial
commissioner must inevitably have found that there was evidence to support that of the
single identifying witness. In the circumstances, the proviso must apply. For the reasons
given, we are satisfied that the findings against all the three juvenile appellants cannot be
interfered with. Accordingly their appeals are dismissed.
Before we conclude we would like to comment on two aspects that arise from this case.
First, it is necessary to emphasise that the evidence of the discovery of the pistol and the
rounds of ammunition, standing alone, would not have constituted a sufficient link but,
when considered in the light of all the other evidence, it constitutes an item of evidence
which cannot be ignored, and which goes to support the other evidence. Had the police
conducted a more thorough investigation they might have gathered evidence to connect the
pistol recovered from Mathias Tembo's room with the pistol that was actually used during
the commission of the crime. It is unfortunate that the doctor who conducted the
post-mortem examination did not see it fit to remove the bullet which he said had lodged
in the deceased's spine. While conceding that it is part of his duty to assist to recover an
article used in the commission of a crime, the doctor testified that the deceased's relatives
were not very keen to have the post-mortem examination conducted on the deceased's
body and that he did not like to offend the relatives by mutilating the body as he had
already ascertained the cause of death. This to us is not the proper approach; the
honouring, for instance, of the feelings of relatives of a dead person should not be done at
the expense of promoting the interests of justice through a thorough investigation of a
criminal offence. Had the bullet been recovered an examination by a ballistic expert of that
bullet and of the pistol recovered from Mathias Tembo's room, could have made available
material evidence for the benefit of one side or the other. The proper approach for a doctor
conducting an autopsy on a human body, particularly where the death is likely to give rise
to criminal proceedings, is to gather all the necessary material evidence that would naturally
flow from such an autopsy. Be that as it may, it seems to us that had the police stressed
the significance of removing the bullet from the deceased's body, the doctor would have
complied with their request.

Second, there is practice which seems to be growing in relation to the examination of

witnesses by the court. In the present case, after White Tembo had given evidence in chief,
been cross-examined and re-examined, he was asked certain questions by the court. When
the court concluded its examination of the witness, neither side was given an opportunity to
further examine him. The proper procedure is to give an opportunity to each side to
examine, in the ordinary way, such a witness if it so wishes.

Judgment

BARON, D.C.J : I agree that the appeals of the three juveniles must be dismissed. However,
because this is another case in which the appeal turns on the weight of evidence necessary
before the proviso can be applied - a matter which has given rise to a deep difference of
opinion in the recent important case of Phiri (E) v The People (5) - it may be helpful if I
express my reasons for my conclusion separately.

The learned trial commissioner convicted the three juvenile appellants because he was
satisfied as to the reliability of the identifications made by the deceased's daughter, Sara.
He expressed himself to be so satisfied because these identifications were in each case
confirmed by the confessions of each of the appellants. The confession of the first appellant,
John Mkandawire, was properly held to have been freely and voluntarily made. I agree that
even without this confession the conviction of this appellant must stand - my reason being
that the possibility of an honestly mistaken identification has in his case been ruled out for
the same reasons as apply to the other two appellants, and with which it will be convenient
to deal together in a moment.

The three juvenile appellants were charged with a fourth juvenile, the younger brother of
the third appellant. Warned and cautioned statements were taken from all four boys;
objection was taken to all the statements and trials-within-the-trial were held. The evidence
as to voluntariness in relation to the statements of the second and third appellants and the
fourth accused was substantially the same. Yet the learned trial commissioner expressed
himself to be satisfied beyond reasonable doubt as to the voluntariness of the statements of
the second and third appellants whilst being in doubt in the case of the fourth accused. He
did not hold that the fourth accused had in fact been beaten, but he held that certain scars
which the fourth accused showed to the court were consistent with his descriptions of the
beatings he alleged to have received and he concluded "maybe for that reason as his
parents were not there I entertain some doubts in his favour". These doubts necessarily
involved doubts as to the truthfulness of the witnesses who consistently denied having
beaten any of the appellants, and bearing in mind particularly that White Tembo, the father
of the third appellant and the fourth accused and who acted also as the guardian of the
second appellant, alleged that all three boys were seriously beaten in his presence, as
indeed he himself was beaten, it seems to me that it is impossible for a court not to
entertain similar doubts concerning the truthfulness of the evidence of those same
witnesses in respect of their evidence concerning events which took place at substantially
the same time and in the course of the same investigation. The learned trial commissioner
has not as I read his judgment, held the witnesses in question to be untruthful concerning
the events surrounding the statement of the fourth accused; but the circumstances in which
the three statements in question were taken and the evidence in relation thereto are such
that a doubt as to voluntariness in the one case must necessarily give rise to the same
doubt in the others.

The learned trial commissioner's reliance therefore on the statements of the second and
third appellants as providing confirmation of the evidence of identification given by Sara was
a misdirection. There is a misdirection also in the case of the first appellant in that the
commissioner in his Judgment ignored the fact that Sara had seen him in the custody of the
police outside the shop immediately after the shooting; she said in evidence that she
recognised him then as one of the three boys who had entered the shop, but since he was
very obviously in police custody at that time this identification also, if it stood by itself,
would be of little value. I have therefore approached this case on the basis that the trial
commissioner has misdirected himself in respect of all three appellants and that none of the
convictions can stand unless the proviso can be applied.

This court has dealt with the question of the application of the proviso where the appeal is
from a judge sitting alone in Phiri (E) (5) and I do not propose to repeat what we said
there save to set out again the test to be applied, namely: was there corroboration or
supporting evidence of such weight that the conclusion is not to be resisted that any court
behaving reasonably, moving from the undisputed facts and any findings of fact properly
made by the trial court, would, directing itself properly, certainly have arrived at the same
conclusion? There are two important differences between Phiri (E) (5) and this case. In Phiri
(E) (5) the danger was of deliberate false implication by accomplices, whereas here the
danger is of an honestly mistaken identification; secondly, in Phiri (E) (5) the trial court was
fully conscious of the desirability of corroborative evidence and specifically looked for it and
found none whereas here the trial court was content to rely on the confessions as providing
evidence supporting the identifications and simply did not direct its mind to the other
evidence to see whether it provided further support. These factors, and indeed others, have
an important bearing on the application of the proviso in any particular case; the nature of
the case, the nature of the risks of an unsafe conviction, the nature of the particular
misdirection which gives rise to the question as to the application of the proviso, the nature
of the findings actually made by the trial court in the course of its analysis and evaluation of
the evidence - all these must affect the decision of the appellate court as to whether it can
be said that the trial court directing itself properly would certainly have arrived at the same
conclusion.

The misdirection in the case of the first appellant was the failure of the learned
commissioner to examine the reliability of the identification in view of the fact that Sara had
seen the appellant in the custody of the police immediately after the shooting. The court
relied on the first appellant's confession, as it was entitled to do, as providing confirmation
of the identification made at the subsequent identification parade, and quite apart from the
considerations which apply to all three appellants I am in no doubt whatever that the
learned commissioner, on the basis also of the confession, must have convicted.

This court has in a number of cases dealt with the risk of an honestly mistaken
identification, particularly where the identification is by a single witness. Thus in Bwalya v
The People (3) we stressed that usually the possibility of an honest mistake could not be
ruled out unless there were some connecting link between the accused and the offence
which would render a mistaken identification "too much of a coincidence"; and in
Nachitumbi and Anor v The People (6), when dealing with the weight to be attached to the
evidence which might be regarded as such connecting link, we stressed that the evidence
must be of such weight as to take an honestly mistaken identification outside the realm of
acceptable coincidence. R. v Turnbull and Ors (4) makes the same point when dealing with
evidence capable of supporting evidence of identification.

Subject to what I have said concerning the value of the identification of the first appellant,
the identifications of the three appellants cannot be criticised on the basis of any defect in
the conduct of the parade nor indeed on any other basis. But the circumstances were truly
traumatic, and it is essential to be satisfied that the possibility of an honest mistake has
been excluded. The evidence capable of providing the necessary connecting links in support
of these identifications is first, that the three appellants were friends who, in the words of
the third appellant's mother, used to play together, and second, that under the floor of the
room occupied by the third appellant and his brother, the fourth accused, there was found a
firearm and a considerable quantity of ammunition. As the learned Chief Justice has said,
the finding of these articles standing alone would not be a sufficient link; it is however an
additional unexplained coincidence which must be taken into account in evaluating the
weight of the evidence and the inevitability of the inference to be drawn from that evidence.

If Sara was mistaken in her identifications of the three appellants or any of them the string
of coincidences is quite remarkable. It would mean that the second and third appellants
were not in her father's shop, and there is no evidence whatever to suggest that they had
been in the shop on some previous occasion and been recognised for that reason. The first
coincidence therefore is that Sara should identify two youths, whom she had never seen
before, who turn out to be close friends who live next door to one another; the second
coincidence is that one of these youths should have a firearm and ammunition hidden under
the floor of his room. The third coincidence is that these two youths should be friends of a
third youth who, moments after the shots were fired, was seen running away from the
direction of the deceased's shop (I am ignoring for the present purpose the further
coincidence that this third youth was, as was properly held, one of the culprits). The same
considerations operate in relation to the first appellant, ignoring for this purpose his
confession. He was undoubtedly very near the deceased's shop when the shots were fired;
it would be a truly remarkable coincidence if a youth mistakenly identified running away for
no apparent reason (he denied the evidence of the witness who said that he ran away, but
that evidence was believed), should turn out to be a close friend of two other youths
identified by Sara as having been in the deceased's shop, one of whom had a firearm and
ammunition buried under the floor of his bedroom.

For these reasons I am satisfied that any court behaving reasonably if it had not misdirected
itself in the respects to which I have referred but had directed its mind to the other
evidence, and in particular, to what would be a remarkable series of coincidences if the
identifications of the appellants were mistaken, would certainly have concluded that the
possibility of such honestly mistaken identifications had been excluded and that it was safe
to rely on the identifications made by the single identifying witness.

Judgment

GARDNER, J.S.: I agree that for the reasons given by my learned brothers all three
appeals must be dismissed.
Appeal dismissed

MWANSA MUSHALA AND OTHERS v THE PEOPLE (1978) Z.R. 58 (S.C.)

SUPREME COURT
BARON, D.J., GARDNER AND BRUCE-LYLE, JJ.S.
16TH NOVEMBER, 1977 AND 14TH FEBRUARY, 1978
(S.C.Z. JUDGMENT NO. 6 OF 1978)

Flynote

Evidence - Identification - Recognition - Possibility of honest mistake - Necessity to

exclude even in recognition cases.
Evidence - Presumption - Failure to search for fingerprints - Dereliction of duty by police -
When presumption favourable to accused person arises - Nature of presumption.

Headnote

The appellants were convicted of aggravated robbery. They were alleged to have gained
entry to the complainant's house by a trick and, after ransacking the house, to have locked
the complainant and his wife in a room; too of them made their escape in the Land - Rover
in which they had come and the third drove off in the complainant's car. The complainant
succeeded in escaping from the house and with the help of a passing motorist gave chase;
the Land - Rover and the complainant's car severe overtaken, at which point the Land -
Rover took one direction and the complainant's car another. The complainant enlisted the
help of two soldiers who were nearby and the chase after the Land - Rover continued. The
Land - Rover was again overtaken and came to a stop in Matero township, when the three
men in it took to their heels. The two soldiers each chased one of the occupants and caught
their respective quarries; they both said in evidence that they had never lost sight of the
men who had alighted from the Land - Rover and this evidence was accepted by the trial
court.

The case against the third appellant rested on the evidence of a police officer who caught a
fleeting glimpse of the appellant in the complainant's car, and who said also that he found
certain articles of clothing in the house of the third appellant which were identified by the
complainant as part of the stolen property.

It was argued on behalf of all the appellants that the evidence concerning identification
parades was unsatisfactory and that the failure to test the vehicles in question for
fingerprints raised presumptions in favour of the appellants which the trial court had not
taken into account.

Held:
(i) Although recognition may be more reliable than identification of a stranger,
even when the witness is purporting to recognise someone whom he knows
the trial judge should remind himself that mistakes in recognition of close
relatives and friends are sometimes made, and of the need to exclude the
possibility of honest mistake; the poorer the opportunity for observation the
greater that possibility becomes. The momentary glance at the inmates of the
Fiat car when the car was in motion cannot be described as good opportunity
for observation.

R. v Turnbull (1) followed.

(ii) The evidence concerning the articles of clothing was most unsatisfactory and
could not buttress the weak evidence of identification.

(iii) Unless the failure of the police to look for fingerprints is a dereliction of duty
no presumption in favour of an accused person arises.

Kalebu Banda v The People (2) followed.

(iv) The failure by the police to take fingerprints from the car the third appellant
was alleged to have been driving leads to the presumption in his favour that
his fingerprints were not on or in that car and therefore that he may not have
been the one who was driving that car.

Kalebu Banda v The People (2) applied.

(v) In the cases of the first and second appellants the circumstances of their
apprehension were such that the failure of the police to look for fingerprints
on the Land - Rover was not a dereliction of duty.

Cases cited:

(1) R. v Turnbull [1976] 3 All E.R. 549.

(2) Kalebu Banda v The People (1977) Z.R. 169.

For the appellant: Miss M. Henriques, Legal Aid counsel.

For the respondent: A. Kinariwala, State Advocate.

Judgment

BRUCE-LYLE, J.S.: delivered the judgment of the court.

The appellants were convicted of aggravated robbery and each has appealed against
conviction and sentence.

On the morning of the 28th June, 1975, Land - Rover with a GRZ registration number
pulled up at the gate of Mrs Passmore in Sable Road, Lusaka. Mrs Passmore, PW2, walked
to the gate and found six persons in the vehicle. She then inquired as to their mission and
one of the men stated that he was a Government official and had come to find out if anyone
in the house possessed ivory or an ivory licence which he was anxious to examine. PW2
then opened the gate and the Land - Rover moved into the yard and the six men alighted
and followed PW2 towards the house. The husband, PW1, then realised there was
something wrong and when the wife entered the house he tried to close the kitchen door
and three of the men got behind the door and one of them produced what looked like a gun
and told PWs 1 and 2 to get inside the house or he would shoot. The men then pushed their
way into the house and the other three followed into the house. The man with the gun then
ordered PWs 1 and 2 to sit and he stood over them with the gun and the other five men
then ransacked the bedrooms and cupboards and removed items of clothing and other
articles mentioned in the charge and took them outside the house. They then locked PWs l
and 2 in the lounge, but PW1 got the key to another door and opened it and rushed out only
to find that the Land - Rover and his own car had been driven out of the house. He then ran
into the road and shouted for help and a car coming down the road stopped and PW1 told
the driver what had happened, and the driver allowed him to jump into the car and the
driver followed the Land - Rover and PW1's car. The chase got to the Government Stores
where the Land - Rover took to one direction and PW1's car was driven in another direction.
PW1 then shouted to some soldiers who were then outside the Government Stores and two
of them got into the car in which PW1 was, and then the chase after the Land - Rover
continued to Matero Township where the Land- Rover stopped and three men who were
then in it alighted and took to their heels. The soldiers got out of the car and one of them
ran after one of the men while the other ran after another man. PW1 stated that he also ran
after them but later stopped and returned to the Land - Rover in which he found some of his
property. During the chase after the men who had alighted from the Land - Rover, PW3, the
driver of the car, drove to Matero Police Station where he made a report. PW4, one of the
soldiers, chased and apprehended the first appellant and PW the other soldier chased and
apprehended second appellant. Each of the soldiers stated that during the chase he never
lost sight of the one he was after. First and second appellants were then taken to the police
station in the Land - Rover with PW1's property.

On the same day of the robbery, and after the report to the police, PW9, a police officer,
drove into Kanyama Township and on a dusty road spotted a Fiat car, registration No. AAB
2873 approaching front the opposite direction. PW9 stated that he recognised it as the
vehicle reported stolen so he made a "U" turn and drove after it; that before he made the
turn he had seen three persons in it and had recognised the driver as the third appellant.
During the chase he had lost sight of this vehicle because his vehicle had suddenly
developed trouble and had come to a halt. He further stated that he had known third
appellant since 1974 and knew his name as well. On the 28th July, 1975, he drove to
Kanyama on duty in a police Land - Rover and he saw the third appellant walking from
Kanyama towards the town and he stopped his vehicle and the appellant then took to his
heels and two police officers who were in the Land - Rover with him alighted and gave
chase, and that when they could not cope with the speed of the appellant he drove the Land
- Rover after the appellant and eventually got to him and stopped his vehicle and
apprehended the appellant; that appellant then led him to his house in Chibolya where he
found three underpants tied in a tablecloth underneath the bed; that he then took appellant
and the items to the police station and the underpants were subsequently identified by PW1
as some of the items taken from his house on the day of the robbery.

Two separate identification parades were held on different dates. In the first parade were
the three appellants and PW1, Mr Passmore and PW2, Mrs Passmore identified the first
appellant and the third appellant and failed to identify the second appellant. It is significant
to note that even though the second appellant was apprehended by one of the two soldiers
and taken to the Land - Rover where PW1 was then standing and that they were all driven
to the police station, PW1 was unable to identify the second appellant. In the second parade
were the first appellant and the fourth accused and PW1 identified the fourth accused but
failed to identify the first appellant who he had identified at the earlier parade. PW2 failed to
identify anyone, not even the first appellant who she had identified at the earlier parade.

When the first, second and the third appellants were charged each denied the offence. In
his defence first appellant denied being one of the three alleged to have alighted from the
Land - Rover at Matero and he stated that he was on his way to Matero and that at the
Desai Compound the soldier called him and told him that he looked like someone he, the
soldier, had been chasing. Appellant stated that he denied and the soldier then asked him to
accompany him to Matero which he did, and that in Matero he was put in a Land - Rover in
which was another soldier with the second appellant. At the police station he denied any
knowledge of the robbery. The second appellant, in his unsworn statement, stated that he
was walking from Desai Compound towards Matero when he saw a soldier who asked him
whether he had seen a person who was being chased, and when he denied having seen
anyone the soldier then told him that the person being chased was wearing a jacket similar
to the jacket he, the appellant, had on and therefore he was the one being chased, so the
soldier then took him to Matero where he was taken to a Land - Rover and then taken with
the first appellant to the police station. He further stated that when questioned later about
the robbery he denied any knowledge of it and that at the Central Police Station a C.I.D.
officer took photographs of him. He admitted having taken part in an identification parade
but was not picked out by any of the witnesses.

Miss Henriques, for the appellants, contended that the identification parades were irregular
because before the parades PW1 had stated that he had seen photographs of the suspects
at the police station; that PW9 and other police witnesses responsible for the parades
denied that photographs of any of the suspects were ever taken. The learned trial judge in
his judgment did not resolve the issue as to whether or not PW1 had seen photographs of
any of the suspects before the parades. If PW1 had seen photographs PW2, the wife who
was then with him, no doubt also saw the same photographs. If the trial judge had directed
his mind to these facts we are not in a position to say that he would have still considered
the parades as regular.

As to the identification of the suspects at the parades the learned trial judge had this to say:
"I am further satisfied that Mr and Mrs Passmore did not make any mistake as to the
identity of Accused Nos l and 3 at the identification parades because they had ample
opportunity to look at their faces before and actually at the time of the robbery when
accused No. 3 held them at gun point (toy gun?). If they were witnesses of untruth, they
would have falsely told this court that they identified accused No. 2 and indeed probably
even the fourth accused at the two parades they attended. On the contrary, they honestly
said they could not; identify these two accused; they were positive about the identity of
accused Nos. 1 and 3." The issue in this case as regards the identifications at the parades in
our view, was not one of credibility of the witnesses PWs 1 and 2, but was whether or not
the identifications could be considered as sufficient. Before the first parade PW1 had already
had the opportunity of seeing the first and second appellants at the Land - Rover in Matero
when they were taken to the vehicle by the two soldiers; he had in addition to this
opportunity seen photographs of the suspects. The parades in our view were therefore
improper so far as PW1 was concerned. PW1 failed to identify second appellant and he only
identified the first and third appellants. PW2, the wife who no doubt had also seen the
photographs of the suspects identified the first and third appellants but not the second
appellant. In the second parade were the first appellant and the fourth accused and PW1
identified only the fourth accused, but not the first appellant who PW1 had identified in the
earlier parade. PW2 failed to identify anyone at this parade, not even the first appellant who
she had identified in the earlier parade. The only probable inference to be drawn from these
identifications by PWs 1 and 2 is that PWs 1 and 2 cannot be said to be persons having
reliable sense of observation. From all the circumstances we find the identification parades
unnecessary, irregular and unreliable.

For the sake of convenience we will deal first with the appeal of the third appellant. The
case against him rested on the evidence of PW9 who stated that he recognised the stolen
car of the complainant coming from the opposite direction and when the vehicle passed his
vehicle he recognised the driver as the third appellant whom he had known before, and that
he later saw the appellant walking towards the Matero Compound and apprehended him.
That the third appellant's house was subsequently searched and three underpants were
found and which items were subsequently identified by PW1 as some of the articles stolen
from his house. There was also the evidence that at the identification parade PWs 1 and 2
identified the third appellant. We have already found the identification parade as
unnecessary, irregular and unreliable and we therefore do not propose to dwell on that
aspect of the evidence again. Miss Henriques, learned counsel for the appellant, contended
that, when the vehicle, in which PW1 was passed the Fiat car, the period was so momentary
and fleeting that PW1 could not have had sufficient opportunity to observe the driver in the
vehicle, more so because the driver was not the only person in the vehicle but that there
were two others and therefore the danger of an honest mistake could not be ruled out. The
learned trial judge in resolving the issue of the identification of the third appellant by PW9
stated as follows: "Regarding the question of whether Inspector Muyoma falsely implicated
the third accused when he told this court that he saw him drive the car the police wanted,
namely Fiat AAB 2873 belonging to the Passmores, my finding is that Muyoma told this
court the truth and I believe his evidence. I find no reason why he should deliberately cook
up a story incriminating this accused." The learned trial judge failed to warn himself as to
the danger of an honest mistake. He did not consider the possibility of an honest mistake in
the identification by PW9. The credibility of a witness is not the only consideration in a
single witness's identification as in this case. The guidelines in identification cases were laid
down in R. v Turnbull (1); the Court of Appeal in England stressed that although recognition
may be more reliable than identification of a stranger, even when the witness is purporting
to recognise someone whom he knows the trial judge should remind himself that mistakes
in recognition of close relatives and friends are sometimes made. Even in recognition cases
a trial judge should warn himself of the need to exclude the possibility of honest mistake,
and the poorer the opportunity for observation the greater that possibility becomes. The
momentary glance at the inmates of the Fiat car when the car was in motion cannot be
described as good opportunity for observation.

The prosecution sought to buttress the weak evidence of identification by evidence of the
three pairs of underpants alleged to have been found in the third appellant's house. Miss
Henriques has submitted that, on the whole of the evidence, the three underpants, or
swimming trunks as they were also described, could not have been found in the house of
the third appellant and referred this court to the evidence of PWs 1 and 2 and pointed out
that in the evidence of these witnesses there was no mention by any of them that they ever
identified these underpants at the police station, and therefore the evidence of PW9 that
PW1 identified the underpants should not have been relied on by the trial court. Even more
unfortunately, in the evidence of PW9 under cross-examination, he admitted that at the
preliminary inquiry he never mentioned anything about the underpants, even though at the
time of giving that evidence in the preliminary inquiry he was in possession of that
evidence. PW9, under cross-examination at the trial, explained the omission by stating "It
was an error that I made, that at a later time I revised about the underpants." We agree
with the submissions of learned counsel and find the evidence relating to the finding of the
underpants in the house of the third appellant most unsatisfactory. If the learned trial judge
had directed his mind to these aspects of the evidence relating to the underpants or
swimming trunks we are not ni a position to say that he would inevitably have convicted on
the evidence of the alleged recognition by PW9.

The learned trial judge further found that third appellant was found in possession of a
stolen. vehicle and that the only reasonable inference he could draw was that third appellant
was one of the persons who had committed the offence. Against this finding is the weak
quality of the identification by PW9 for which reason the finding of the learned trial judge
cannot in our view stand. Miss Henriques has challenged this finding on the ground that the
police failed to take fingerprints from the Fiat car and relied on the case of Kalebu Banda v
The People (2). We have on many occasions referred to this case which deals with the effect
of dereliction of duty on the part of the police in not taking fingerprints as in this case. We
agree with learned counsel that the failure by the police to take fingerprints from the car
leads to the presumption in favour of the appellant that his fingerprints were not on or in
that car, and therefore that he may not have been the one who was driving that car. The
possession of the car by third appellant was therefore in our view not proved beyond
reasonable doubt.

On the whole of the evidence relating to the third appellant we find the conviction against
him unsafe and unsatisfactory and his appeal succeeds. The conviction is quashed and the
sentence is set aside.

The appeals of first and second appellants merit different considerations. First and second
appellants were alleged to have alighted from the Land - Rover when it stopped at Matero
and that they were chased by the two soldiers, PWs 5 and 4, and that PW5 apprehended the
first appellant and PW4 apprehended the second appellant. There was also the evidence
that after the appellants had been apprehended they were put in the first identification
parade at which PWs 1 and 2 identified the first appellant but failed to identify the second
appellant. In a subsequent parade in which second appellant did not take part, PW1
identified the first appellant but PW2 failed to identify him. We have held for reasons stated
that the identification parades were unnecessary, irregular and not of sufficient weight. Miss
Henriques has submitted on behalf of the appellants that the failure of the police to look for
fingerprints on the Land - Rover operated in favour of the appellants and raised the doubt
as to whether they were those who alighted from the Land - Rover. As we said in Kalebu
Banda (2) already referred to, the first issue is whether the failure of the police to look for
fingerprints was dereliction of duty; if not, no presumption arises. There was evidence
relating to the apprehension of the appellants by PWs 5 and 4. Each of the prosecution
witnesses PWs 5 and 4, stated that he never lost sight of the man he chased up to the time
he apprehended him, and the evidence of each witness was accepted by the learned trial
judge. We find nothing on the record to justify interference with this finding of fact; it
cannot therefore be said that the failure to look for fingerprints was dereliction of duty.
The evidence against the first and second appellants is overwhelming and their appeals
against conviction are therefore dismissed.

On sentence the first appellant has previous convictions for aggravated robbery in 1964 and
for store breaking in 1968. The second appellant is first offender and each was sentenced
to thirty years' imprisonment with hard labour. This was an aggravated robbery committed
by six men and under circumstances which we consider somewhat more serious than the
spectrum of offences for which the minimum statutory sentence would be appropriate. On
the other hand, the offence was not accompanied by aggravated circumstances such as the
use of gratuitous violence. The sentence of thirty years therefore comes to us with a sense
of shock. We therefore consider the appropriate sentence for this offence to be eighteen
years' imprisonment with hard labour. The first appellant, not being a first offender, is not
entitled to any leniency, although the previous offences were committed as far back as
1968. The second appellant is a first offender and is therefore entitled to leniency. We would
therefore allow the appeals against sentence, set aside the sentences and substitute what
we consider the appropriate sentence in the following terms: First appellant to eighteen
years' imprisonment with hard labour and second appellant to fifteen years' imprisonment
with hard labour, with effect from their dates of arrest, namely the 28th June, 1975.

Appeal against conviction dismissed

TOMMY MWENDALEMA v ZAMBIA RAILWAYS BOARD (1978) Z.R. 65 (S.C.)

SUPREME COURT
BARON, D.C.J., GARDNER AND BRUCE-LYLE, JJ.S.
25TH APRIL, 17TH MAY, 1977, AND 8TH FEBRUARY, 1978
(S.C.Z. JUDGMENT NO. 5 OF 1978)

Flynote

Civil procedure - Injunction - Application for interim injunction ex parte - Necessity for full
disclosure of material facts - Effect of nondisclosure - Discharge of interim injunction
obtained ex parte - Consideration thereafter of merits - Triable issue not proper for
determination in interlocutory proceedings.
Civil procedure - Injunction - Interim injunction - Triable issue not proper for determination
in interlocutory proceedings - Balance of convenience.

Headnote

The appellant obtained ex parte an interim injunction restraining the respondent from
transferring the appellant, its employee, from Ndola to Choma. The application for the
interim injunction arose during the course of an action by the appellant claiming, inter alia,
a declaration that such transfer was unlawful in that it infringed the appellant's rights under
s. 4 of the Industrial Relations Act, 1971. The appellant's affidavit in support of the
application made no mention of the disputed expulsion of the appellant from the Zambia
Railways Amalgamated Workers' Union, the membership of which would be a condition
precedent to the application to the appellant of s. 4 (1) (c) of the Industrial Relations Act.
The High Court held that by failing to disclose this purported dismissal the appellant had
been less than frank with the court. The trial court then considered the merits and found
that there was no serious issue for trial. The interim injunction was thereupon discharged.

It was argued on behalf of the appellant that the failure to disclose the purported dismissal
from the union was not such a non-disclosure as justified the discharge of the injunction. It
was argued further that in any event an interim injunction should have been granted on the
merits.

Held:
 (i) Although there was no actual suppression of material evidence the question of
whether or not the appellant was at the material time a member of the union
was of the utmost importance, and the fact that there was a dispute about his
membership should have been disclosed.

(ii) Where an interim injunction obtained ex parte is discharged on the grounds of

non-disclosure of material facts (a matter which will be reflected in the order
as to costs), the court nevertheless proceeds to consider whether or not on
the merits a fresh interim injunction should be granted.

(iii) The question before the High Court was whether or not the appellant was a
member of the union at the time of his proposed transfer, and that most
important issue was a triable issue which should not have been decided at an
interlocutory hearing.

Cases cited:

(1) Boyce v Gill (1891) 64 L.T. 824.

(2) White v Kuzyych [1951] 2 All E.R. 435.
(3) American Cyanamid v Ethicon Ltd [1975] 1 All E.R. 504.

Legislation referred to:

Industrial Relations Act, 1971, s. 4.

Supreme Court Rules, (England), O. 29, r. 1.

For the appellant: L.P. Mwanawasa, Cave Malik & Co.

For the respondent: L.R. Kalumba, Legal Office, Zambia Railways.

Judgment

GARDNER,J.S.:

This is an appeal from an interlocutory judgment of the High Court at Ndola, discharging a
previous injunction obtained ex parte restraining the respondent from transferring the
appellant as an employee from Ndola to Choma.

The application for the interim injunction arose during the course of an action by the
appellant claiming:

(a) a declaration that his transfer in the employment of the respondent from Ndola to
Choma was unlawful in that it infringed the appellant's rights under s. 4 of the Industrial
Relations Act;
(b) damages for wrongful eviction of the appellant from his house in Ndola; and
(c) an injunction restraining the respondent from transferring the appellant from Ndola
to Choma.

Section 4 of the Industrial Relations Act, 1971, reads as follows:

"4. (1) Notwithstanding anything to the contrary contained in any written law, but
subject to the provisions of this Act, every employee shall, as between himself and his
employer, have the following rights, that is to say:
 (a) ...
(b) ...
(c) where he is a member of a trade union, the right, at any appropriate time, to
take part in the activities of the trade union . . . and the right . . . to hold office . . ."

The appellant was employed as a clerk by the respondent and was re elected as chairman of
the Ndola East branch of the Zambia Railways Amalgamated Workers' Union on the 28th
February, 1976. On the 25th April, 1976, a meeting of the appellant's branch of the union
was held and thereafter a newspaper report was published to the effect that a strike had
been threatened at the meeting.

On the 2nd March, 1976, the National Chairman of the Zambia Railways Amalgamated
Workers' Union wrote to the appellant a letter in which he said the following.

"This action taken against you in good faith, follows my careful study I have
undertaken in your functions of Branch Chairmanship of Ndola East, since you were elected
in February, 1975.To this end therefore, I have reluctantly decided to use my powers as
National Chairman of this Organisation and head of all Branch Chairmen, to let you know
that, with effect from 3rd March, 1976, you are expelled from Membership of this Union, for
the Press Statement you issued without permission from appropriate authority.This
expulsion is in accordance with Clause 32 of the ZRAWU Constitution."

A copy of this letter was addressed to the respondent's general manager. Thereafter on the
11th March, 1976, a letter was sent to the General Secretary of the union referring to the
letter from the National Chairman dated 2nd March. This letter was signed by the appellant
in his capacity as chairman of his branch, the secretary of that branch, the chairman of a
sister branch in Ndola and the secretary of the latter branch. In it, the action of the National
Chairman to expel the appellant from membership of the union was challenged on the
grounds that it was contrary to the provisions of the constitution of the union which
provided that seven days' notice in writing of any proposed expulsion must be given, and
that the powers of expulsion were vested solely in the National Council of the union. In
particular the letter said:

"As per foregoing therefore, the action taken by the National Chairman is unjustified
hence is invalid and ultra vires. Comrade Mwendelema will therefore continue to function as
Chairman regardless of what happens, until next election in 1977."

No reply was received to that letter.

On the 17th May, 1976, the respondent's General Manager wrote to the appellant
complaining about the Press reports of the meeting. This letter contained the following three
paragraphs:

"As I said, Management has a duty to protect this national undertaking and I will not
allow anybody to disrupt the services that we provide to the Community. Inciting workers to
go on strike because of your internal problems within the union shall not go unpunished.

I will therefore not expect any further damaging statements from you on an
issue that is little understood. This may please be heeded seriously as any departure shall
make way for administrative action to take its course.
 As a precautionary measure, you have been transferred to the office of the Assistant
Superintendent Transportation Choma, where you will continue with your substantive grade
as clerk Grade 1."

On the 2nd June, 1976, the appellant wrote to the Labour Commissioner in Lusaka and
purported to appeal against his expulsion from the union and on the 31st May, 1976, the
Acting Principal Labour Officer wrote to the respondent complaining that the appellant was
being victimised by the respondent because of his internal union problems.

After the issue of the writ the appellant applied ex parte for an interim injunction to restrain
the respondent from transferring him to Choma, and in his affidavit in support of the
application he stated as a fact that he had been re-elected as chairman of his branch of the
union in February, 1976. He made no mention whatsoever of his disputed expulsion from
the union. In the interlocutory judgment the learned judge found that, by his failure to
disclose his purported dismissal from the union, the appellant had been less than frank with
the court and went on to say:

"I was on the point of discharging the injunction for this reason alone, but I decided
to look at the merits before doing so."

The learned judge then discussed the merits and found that there was no serious issue for
trial, as a result of which he discharged the injunction.

I will deal first with the discharge of the injunction for lack of disclosure by the appellant.

The practice in this respect is, as was referred to by the learned judge, set out in the
Supreme Court Practice 1976, O. 29, r. 1, Note 25 in which reference is made to the case of
Boyce v Gill (1). In that case an interim injunction was irregularly obtained on suppression
of material facts, but the court granted an injunction in terms of the interim order, having
discharged the interim order with costs against the plaintiff. Although, in this case, there
was no actual suppression of material evidence I cannot but agree with the learned judge
that the question of whether or not the appellant was at the material time a member of the
union was of the utmost importance, and the fact that there was a dispute about his
membership should, without doubt, have been disclosed. In my view the learned judge
quite properly discharged the interim injunction and that view will be reflected in the order I
propose. However, although it was right to discharge the first interim injunction it does not
follow that no interim injunction should have been granted. Before the hearing of the
second application the appellant filed a further affidavit which disclosed the dispute as to his
expulsion from the union. The court was therefore then in possession of the facts necessary
for considering the application for an interim injunction and the application was then free
from the taint of non-disclosure.

The learned judge dealt with the question of whether or not there was a triable issue
relating to the appellant's membership of his union by asking himself the question:

"Is there a real issue which needs a trial to resolve it? Perhaps it is so that the Union
did not follow the rules of fair play (the rules the court calls rules of natural justice in a
compendious and rather loose way) but can I, sitting here, allow that rather in definite
conclusion to decide, even for the present moment, that the decision was no decision at all,
- a nullity? I do not think so and again, because an appeal has been lodged and the
appellate authority, two to three months later, has not determined the appeal, can I say the
decision is not final and effective for now? I am sure I cannot."

I agree with the learned judge that these questions have to be asked but I respectfully
disagree with his own answers. It is clear that the only issue to be considered in this case is
whether or not the appellant was a member of the union at the time of his proposed
transfer. If he was such a member then s. 4 of the Industrial Relations Act may well be
contravened if he is transferred by the respondent. This question of contravention of that
section is a matter to be decided when and if this case comes to full trial, and, again, with
respect to the learned judge, I would not go so far as to say that if the appellant had been
branch chairman his transfer to Choma would have been an infringement of his rights under
s. 4 (1) (c) of the Industrial Relations Act. If the appellant was not a member of the union
then the Industrial Relations Act would not apply to the proposed transfer and therefore his
membership of the union was of vital importance. The question before the learned judge
was whether or not the letter of expulsion by the National Chairman effectively deprived the
appellant of his rights under the Act, and the learned judge wrongly, in my view, took it
upon himself to decide this most important issue at an interlocutory hearing. Reference was
made to the case of White v Kuzyych (2) in which the Privy Council held that where a
member of a union was found guilty by a domestic tribunal of certain offences, a conclusion
was a "decision" to the extent that under the by-laws of the union the member was
debarred from bringing an action in the High Court until he had exhausted all the remedies
available to him under the by-laws. In the first place that was a case involving the decision
of a properly constituted tribunal, whereas in this case the essence of the appellant's
complaint is that he was not expelled by a properly constituted tribunal but, most
important, in my view, this is a matter which should not have been decided at an
interlocutory hearing but was clearly the main - indeed the only- issue to be decided when
the action came to full trial. It is not entirely clear from the affidavit what appeal was lodged
to what appellate authority as referred to by the learned judge, but whether or not an
appeal was lodged, and whether or not the appellant delayed in making such an appeal,
were not matters calling for a final decision by the learned judge at that stage. I have no
hesitation in agreeing with counsel for the appellant that there was a triable issue which
should not have been disposed of on the application for an interim injunction.

As there was a triable issue the next matter that falls to be considered is the balance of
convenience to the parties. The law and practice in this respect are set out in the case of
American Cyanamid Co. v Ethicon Ltd (3) in which the House of Lords set out the principles
which apply to the granting of interim injunctions. Lord Diplock set out these principles at p.
509 as follows:

"My Lords, when an application for an interlocutory injunction to restrain a defendant

from doing acts alleged to be in violation of the plaintiff's legal right is made on contested
facts, the decision whether or not to grant an interlocutory injunction has to be taken at a
time when ex hypothesis the existence of the right or the violation of it, or both, is
uncertain and will remain uncertain until final judgment is given in the action. It was to
mitigate the risk of injustice to the plaintiff during the period before that uncertainty could
be resolved that the practice arose of granting his relief by way of interlocutory injunction;
but since the middle of the 19th century this has been made subject to his undertaking to
pay damages to the defendant for any loss sustained by reason of the injunction if it should
be held at the trial that the plaintiff had not been entitled to restrain the defendant from
doing what he was threatening to do. The object of the interlocutory injunction is to protect
the plaintiff against injury by violation of his right for which he could not be adequately
compensated in damages recoverable in the action if the uncertainty were resolved in his
favour at the trial; but the plaintiff's need for such protection must be weighed against the
corresponding need of the defendant to be protected against injury resulting from his
having been prevented from exercising his own legal rights for which he could not be
adequately compensated under the plaintiff's undertaking in damages if the uncertainty
were resolved in the defendant's favour at the trial. The court must weigh one need against
another and - determine where the balance of convenience lies."

Although the appellant has now been dismissed from his employment and evicted from his
house, this court is not called upon to consider whether such dismissal and eviction were
lawful and we must consider for the purposes of this appeal the situation as it was when the
application for an interim injunction was made. The arguments put forward on behalf of the
respondent were that the respondent had arranged for the transfer of another man from
Choma to Ndola and that the presence of the appellant as an agitator in Ndola would cause
more harm than could be compensated for by damages. The appellant, on the other hand,
argued that if he was moved from Ndola he would be unable to carry out his duties as
chairman of his branch of the union, and if it were ultimately held that he was still legally
the branch chairman, nothing could compensate for his having been prevented from
attending meetings. In my view the inconvenience to the respondent of having to send back
to Choma the man who had been transferred to Ndola would be of little weight compared to
the deprivation of the appellant's opportunities to attend union meetings. Counsel for the
appellant pointed out that the respondent had denied having alleged that the appellant was
an agitator but, even if this were not so, the respondent would have a remedy if the
appellant were to do anything unlawful, and his presence in Ndola could not be said to
cause inconvenience to the respondent which would outweigh the obvious inconvenience to
the appellant. On the balance of convenience, therefore, I would hold that the appellant was
entitled to the interim injunction.

In view of the material non-disclosure by the appellant at the time of the ex parte
application for an interim injunction I would discharge that injunction with costs to the
respondent in any event. I would, however, allow the appeal to the extent of granting a
declaration that the appellant was entitled to an interim injunction at the time of the
interlocutory judgment. We are informed that the appellant has in fact lost his employment
and consequently it would serve no purpose actually to grant such an injunction.

Judgment

BARON,D.C.J.: I agree.

Judgment

BRUCE-LYLE,J.S.: I also agree.

Judgment

BARON,D.C.J.: The appeal is allowed. There will be a declaration that the appellant was
entitled to an interim injunction at the time of the interlocutory judgment.

The appellant will pay the respondent's costs of the ex parte application for an interim
injunction and the discharge thereof; the respondent will pay the remainder of the
appellant's costs both here and in the court below.

Appeal allowed
ANDREAS SACHARIAH SHIPANGA v THE ATTORNEY - GENERAL (1978) Z.R. 71
(S.C.)

SUPREME COURT
SILUNGWE, C.J., BARON, D.C.J., AND GARDNER, J.S.
7TH FEBRUARY 1977, AND 5TH JANUARY, 1978.
(S.C.Z. JUDGMENT NO. 2 OF 1978)

Flynote

Constitutional law - Habeas corpus - Applicant out of jurisdiction of court - Return of writ
disclosing that applicant would' not be returned - Whether good return made.

Headnote

On 21st September, 1976, the court ordered the issue of the writ of habeas corpus
returnable on 5th October, when the return day was extended to 14th October, on which
date the respondent filed an affidavit that the court found did not constitute a good return
and extended the return day further to 7th February, 1977. On that date the respondent
filed an affidavit in which it was deposed that the Government of the Republic of Zambia
had made a formal request to the Government of the Republic of Tanzania for the return to
Zambia of the appellant, but that the request had not been acceded to. A document to that
effect from the Tanzanian Ministry of Foreign Affairs was attached to the affidavit as an
exhibit.

Held:
It being clear from the last return that the appellant would not be returned to the
jurisdiction of the court, a good return had been made.

Per curium

Even if the appellant's departure from Zambia was at his request it was unfortunate
for the executive to provide facilities for, or to have anything to do with, that
departure without the knowledge of his legal advisers whilst habeas corpus
proceedings were in progress.

For the appellant: A.M. Hamir, Solly Patel, Hamir and Lawrence.
For the respondent: The Hon D.M. Lisulo, S.C., Attorney-General, and R.C. Nzerem, State
Advocate.

Judgment

SILUNGWE,C.J.: delivering the judgment of the court, recited the foregoing facts and
continued: It is clear from the last return that the appellant will not be returned to the
jurisdiction of this court; that being so there is nothing further that this court can do in the
habeas corpus proceedings. A good return has now been made. But the matter does not
rest there for we would like to express ourselves on the subject of removing the appellant
out of the court's jurisdiction whilst the hearing of the application for habeas corpus was
pending before the court. The respondent says the departure was at the appellant's
request; it is said on behalf of the appellant that the departure was unwilling. An issue of
this kind cannot be resolved on affidavit and in the absence of the appellant there is little
prospect of it being resolved at all. If, as is alleged on behalf of the appellant, his departure
was unwilling, there has been a contempt of this court. The learned former
Attorney-General assured us that the actions of the executive were taken in good faith and
with no intention to show disrespect to this court. But we must point out that even if the
appellant's departure was at his request, it was unfortunate for the executive to provide
facilities for or to have anything to do with that departure from Zambia whilst habeas
corpus proceedings were in progress without the knowledge of his legal advisers.

We consider that justice is done in this case by awarding costs to the appellant both in this
court and in the court below.
Appellant awarded costs

VICTORIA GROCERIES v THE PEOPLE (1978) Z.R. 72 (H.C.)

HIGH COURT
CULLINAN,J.
17TH MARCH, 1978
(HLA/145/77)

Flynote

Criminal law and procedure - Right of address - Prosecution declining the opportunity to
exercise right- Whether the accused can exercise the right - Criminal Procedure Code, Cap.
160, s. 209.
Criminal law and procedure - Right of address - Prosecutor declining the opportunity to
address - No witness for defence - Whether the accused; could be deprived of the right -
Criminal Procedure Code, Cap. 160, so. 208 and 209.

Headnote

The appellant was convicted of failing to display prices.

At the trial in the subordinate court, at the close of the defence, the Public Prosecutor
indicated that he did not wish to address the court.

The magistrate then considered that the sole witness represented the appellant and that the
appellant had no right to address the court. It was contended that the appellant having
been denied his right of address was denied a fair trial.

Held:
(i) A court shall allow an accused or his advocate to address the court, not
necessarily when the prosecutor had addressed the court, but after the latter
has been given the opportunity to exercise his right of address and has
exercised or declined to exercise the right.

(ii) The phrase "right to reply" merely refers to the right to address the court not
before but after the other party. The right of address cannot be denied to a
party simply because the other party has chosen not to exercise his right of
 address.

Legislation referred to:

Criminal Procedure Code, Cap. 160, ss. 159, 208, 209, 211, 356 (8) and 356 (9).

For the appellant: G.Y. Rathan Raj, Legal Aid Counsel.

For the respondent: W.M. Tsotsi, State Advocate.

Judgment

CULLIAN,J.:

The appellant was convicted by the subordinate court of the first class for the Livingstone
District of failing to display prices and was fined K400.

The learned Legal Aid Counsel, Mr Rathan Raj, has represented the learned counsel for the
appellant at this hearing as that counsel was unable to attend court. The latter counsel, who
also represented the appellant in the court below, has filed numerous grounds of appeal:
there is merit in some of them. The learned counsel for the appellant has also seen fit
however to file a number of personal testimonials, personal to counsel himself, that is. The
learned counsel for the appellant is an officer of the High Court. He was present in the court
below for the purpose of conducting his client's defence. I do not see that his personal
testimonials have any bearing on the content of this appeal.

The record indicates that the trial magistrate would not allow counsel to cross-examine a
price control inspector on the content of the law applicable and as to whether the item in
question was specified in the relevant law. That as I see it was a question of law. The trial
magistrate took the view that the prosecution witness was being asked to give an opinion
which the court was itself competent to give. I agree with the magistrate. The content of
the question was a matter for submission and the learned counsel for the appellant did
subsequently make a submission thereon.

When it came to the close of the defence, the public prosecutor indicated that he did not
wish to address the court. The record then reads:

"Counsel: Can I sum up the case for defence?

Court: No. The P.P. made no submission so the defence cannot reply to a no
summing up."

The learned trial magistrate seemingly considered that the sole defence witness represented
the accused and that the accused had the right to reply. Section 209 of the Criminal
Procedure Code reads as follows:

"209. (1) If the only witness to the facts of the case called by the defence is the
accused, or if the accused elects to make an unsworn statement without calling any
witnesses, the accused shall forthwith give his evidence or make his unsworn statement, as
the case may be.
(2) At the conclusion of such evidence or unsworn statement, the prosecutor shall
then have the right to sum up the case against the accused.
 (3) The court shall then call on the accused person personally or by his advocate to
address the court on his behalf."

Those provisions indicate that the prosecution has the right to address the court. The
section indicates that the court shall then call on the accused to address the court. I take
that to mean that the court shall call on the accused or his advocate to address the court,
not necessarily when the prosecutor has addressed the court, but after the latter has been
given the opportunity to exercise his right of address and has exercised or declined to
exercise that right. Section 209 does not specifically say that the court shall call on the
accused to reply as such. Sections 159 and 211 of the Criminal Procedure Code refer to the
right of reply. Both parties in a criminal case have a right to address the court at the
conclusion of the evidence. The phrase "right of reply" merely refers to the right to address
the court not before but after the other party. The right of address cannot be denied to a
party simply because the other party has chosen not to exercise his right of address. It is a
very strained construction to place on the Criminal Procedure Code to hold that an accused
person, who has the right under s. 208 to address the court after calling witnesses in his
defence, is deprived of such right of address under s. 209, when he has called no witnesses,
simply because the prosecution decides not to exercise its right in the matter. That
construction is all the more strained when applied for example to s. 212 where the accused
remains silent and calls no witnesses. In the present case the appellant was denied his right
of address and was thus in my view denied a fair trial.

In any event, the trial itself was defective. The complaint filed refers to "H.G. Parbhoo"; the
charge sheet in the title thereto refers to "Victoria Groceries (Manager B. H. Parbhoo)"; the
particulars of offence refer to "Victoria Groceries". The record indicates that the "accused"
pleaded not guilty, that "Mr B.H. Parbhoo - Victoria Groceries" was present in court and also
that the charge was "re-put to the accused"; the first prosecution witness referred to the
son of the "owner of the shop" as the manager thereof and identified him as "the accused in
the dock".

When it came to judgment reference was made for the first time to "the accused company".
In brief, the identity of the person (corporate or otherwise) undergoing trial as an accused
was never established. There was no proof that "Victoria Groceries" was a corporation. If it
was, there was no proof that the manager thereof was a representative of that corporation
as defined by s. 356 (8) and (9) of the Criminal Procedure Code.

Appeal allowed

THE PEOPLE v RICHARD KUNDA (1978) Z.R. 75 (H.C.)

HIGH COURT
MOODLEY, J.
27TH MARCH,1978
(HNR/160/1978)

Flynote

Criminal law and procedure - Contempt of court - What constitutes.

Criminal law and procedure - Contempt of court - Contempt not committed in view of the
court - Summary trial - Whether proper.
Criminal law and procedure - Contempt of court - Court staff members - Dereliction of duty
by - Whether proper to charge for contempt.
Criminal law and procedure - Contempt of court - Powers of a magistrate - Exercise of.

Headnote

The accused, a court interpreter, was charged for contempt of court and was tried
summarily.

The magistrate called upon a case scheduled for hearing and found the accused absent from
court. He was informed that the accused, who was outside the court, had stated that he
(accused) was not reporting for duty that morning. The magistrate decided that, since the
accused had not officially informed him that he was not on duty, his conduct constituted
contempt of court. The accused was arrested on a bench warrant and was later tried
summarily. The accused in his defence stated that his failure to report on duty was due to
the fact that he was ill and he had duly informed the Clerk of Court who had issued him with
a letter to the hospital and that he had that morning called at the court premises to obtain a
lift to go to the hospital.

Held:
(i) Where a person is alleged to have committed, by way of speech or writing, an
act of disrespect to a court, then such act may constitute contempt of court.

(ii) If a contempt is committed in view of the court, then it is open to that court
to deal with the offender summarily. But, when it is not committed in view of
the court, the court is precluded from dealing with the matter summarily.

(iii) It is not the function of the court or magistrate to utilise the provisions of s.
116 of the Penal Code and of s. 40 of the Sub-Ordinate Courts Act, as
authority to discipline or punish an erring member of the staff of a
subordinate court. Dereliction of duty by a member of the staff of a
subordinate court is an administrative act of indiscipline which falls to be dealt
with under the disciplinary provisions of the Public Service Regulations.

(iv) Magistrates presiding in subordinate courts should consider with anxious care
their powers to punish for contempt of court and such powers should only be
resorted to reluctantly and sparingly and only in circumstances where there is
a wilful misconduct or disrespect to a magistrate or where attempts are made
to disrupt proceedings before the magistrates.

Case cited:

(1) Balogh v Crown Court [1974] 3 All E.R. 283, 293.

Legislation referred to:

Penal Code, Cap. 146, ss. 116, 116 (1), 116 (1) (a), (b), (c), (d), (i), 116 (2).
Subordinate Courts Act, Cap. 195, s. 50.

Judgment

MOODLEY,J.: On the 7th March, 1978, a magistrate of the third class at Kitwe was
scheduled to take a case involving theft. When the case was called on, it was found that the
court interpreter was not present. The Public Prosecutor informed the learned magistrate
that the interpreter who was outside the court had stated that he was not reporting for duty
that morning. The learned magistrate decided that since the interpreter had not officially
informed him that he was not on duty, the interpreter's conduct constituted contempt of
court. He thereupon issued a bench warrant for the arrest of the interpreter and the said
warrant was to be returnable on the 8th March, 1978. The bench warrant was executed
almost immediately and on the 8th March the interpreter, who had been remanded in
custody overnight, appeared before the learned magistrate. Without presenting a formal
charge or taking a plea the learned magistrate commenced proceedings for contempt of
court and heard two witnesses, a police officer and the Clerk of Court. The interpreter
gave evidence in his own defence. He stated that his failure to report for duty on the
previous morning was due to the fact that he was ill. He had duly informed the Clerk of
Court who had issued him with a letter to take to the hospital. He stated that he was on his
way to the hospital when he called at the Boma premises in which the magistrate's court is
situated in order to obtain a lift to the hospital in a vehicle which was parked outside the
premises. While waiting for the lift he was approached by the prosecutor and subsequently
arrested.

The learned magistrate found as a fact that the interpreter had failed to inform the court
about his illness and that he had failed to make necessary arrangements for a substitute
interpreter. He found that the interpreter's conduct was a deliberate move to disrupt the
proceedings of the court. The learned magistrate further attributed the interpreter's absence
to the fact that the latter had no jacket on that morning. In those circumstances, he
purported to find the interpreter guilty of contempt of court contrary to s. 116 (1) (a) of the
Penal Code, Cap. 146, and fined him K40, in default one month's simple imprisonment. The
learned magistrate further directed that a copy of the proceedings should be transmitted to
the High Court.

Section 116 (1) of the Penal Code provides, inter alia: "Any person who (a) within the
premises in which any judicial proceedings is being had or taken, or within the precincts of
the same, shows disrespect in speech or manner, to or with reference to such proceeding,
or any person before whom such proceeding is being had or taken . . . is guilty of a
misdemeanour and is liable to imprisonment for six months or to a fine not exceeding K50."
Section 16 (2) provides: "When any offence against paragraph (a), (b), (c), (d) or (i) of
sub-section (1) is committed in view of the court, the court may cause the offender to be
detained in custody and at any time before the rising of the court on the same day, may
take cognizance of the offence and sentence the offender to a fine not exceeding K40 or, in
default of payment, to imprisonment without hard labour for one month."

Thus, where a person is alleged to have committed either by way of speech or writing, an
act of disrespect to a court, then such an act may, prima facie, constitute contempt of court
in terms of s. 116 (1) (a) of the Penal Code, Cap. 146. If such contempt is committed in the
view of the court, then it is open to the court to punish the offender summarily in the
manner set out in s.116 (2) of the Penal Code. But where the alleged contempt is not
committed in the view of the court, then the court is precluded from dealing with the matter
summarily. In such circumstances, the court should permit the State to formally institute
proceedings for contempt against the offender in accordance with the provisions of s. 116
(1) of the Penal Code.

In the instant case, the learned magistrate had purported to deal with the matter summarily
but the facts on record show that this was not in fact so. The procedure for summary
punishment for contempt of court is set out in s. 116 (2) of the Penal Code. Here, however,
the learned magistrate issued a warrant for the arrest of the interpreter and the said
warrant was returnable on the following day when the interpreter was brought before the
court after spending a night in custody and was punished in terms of s. 116 (2) of the Penal
Code. There was no legal justification for this course of action. The interpreter should have
been properly charged under the relevant provision of s. 116 (1) of the Penal Code at the
instance of the State and the proceedings for contempt should have been heard by another
magistrate.

When one looks at the evidence of this purported trial for contempt of court, one finds that
the conduct of the interpreter did not in any way constitute disrespect to the proceedings
before the learned magistrate or to the learned magistrate himself. The failure on the part
of the interpreter to report for duty on the morning of the 7th March cannot in any way be
disrespectful to the court. It might have inconvenienced the court but this should not be
equated to disrespect. The failure on the part of the interpreter to report for duty is purely
an administrative matter which requires to be dealt with in accordance with established
administrative channels.

In this case the interpreter may have had a valid reason for not reporting for work. He had
duly informed his superior, the Clerk of Court that he was ill and the Clerk of Court had
issued him with a letter to take to the hospital. However, even if the absence was due to
dereliction of duty and that in this case the interpreter was malingering, this conduct would
in no way constitute contempt of court. Contempt of court, in these circumstances, would
only arise if the interpreter had reported for duty and either in speech or manner was
disrespectful to the court or, if he had, in any way disrupted the proceedings. Such conduct,
if committed in the view of the court, is punishable summarily under the provisions of s. 116
(1) (a) and s. 116 (2) of the Penal Code.

Thus, where, as in this case, the interpreter had failed to report for duty, the learned
magistrate should have requested the Clerk of Court to find him a substitute interpreter. If
the magistrate was of the opinion that the interpreter was malingering and was committing
an act of indiscipline then all that the learned magistrate could do was to bring the matter
to the notice of the superior officer, in this case the senior resident magistrate at his station,
who would then deal with the matter administratively in accordance with the powers vested
in him. It is not the function of the court or a magistrate to utilise the provisions of s. 116
of the Penal Code as authority to discipline or punish erring members of staff of a
subordinate court. Dereliction of duty by members of the staff of the subordinate court are
administrative acts of indiscipline which fall to be dealt with under the disciplinary provisions
of the Public Service Regulations. The functions of the court to punish for contempt is clearly
set out in s. 116 of the Penal Code and s. 40 of the Subordinate Courts Act, Cap. 45. These
provisions do not in any way empower a court to punish for contempt members of the staff
of a subordinate court whose conduct might constitute indiscipline, but which does not
either in speech or manner show disrespect to the court or disrupt the proceedings of the
court.

Magistrates presiding in subordinate courts should consider with anxious care their powers
to punish for contempt of court and such powers should only be resorted to reluctantly and
sparingly and only in circumstances where there is wilful misconduct or disrespect to a
magistrate or where attempts are made to disrupt proceedings before the magistrate. If
such conduct is in the view of or ex-facie the court, it should be dealt with summarily under
the provisions of s. 116 of the Subordinate Courts Act. In all other cases it is advisable that
proceedings for contempt of court should be initiated by the State before another
magistrate. A matter of some concern here is that the learned magistrate had from the very
outset started on the basis that the absence from duty on the part of the interpreter
constituted contempt of court. Thereupon he issued a bench warrant causing the interpreter
to be remanded in custody until the following day. There was no justifiable reason for the
interpreter to have been remanded in custody since it was open for the learned magistrate
to have dealt with the alleged contempt summarily. By keeping the interpreter in custody
overnight and thereafter punishing him for contempt of court would appear to suggest that
the interpreter was being punished twice for the same offence.

In dealing with the powers of judges to punish for contempt, Stephenson, L.J., in the case
of Balogh v Crown Court [1974] 3 All E.R. 283, 293 had this to say: "The power which the
judge exercised is both salutory and dangerous: Salutory because it gives those who
administer justice, the protection necessary to secure justice for the public; dangerous
because it deprives a citizen of the protection of safeguards considered generally necessary
to secure justice for him. This appeal gives an opportunity to make clear that it is a power
to be used reluctantly but fearlessly when, and only when, it is necessary to prevent justice
being obstructed or undermined - even by a practical joker. This is not because judges,
juries, witnesses and officers of the court take themselves seriously; it is because justice
whose servants they are, must be taken seriously in a civilised society if the rule of law is to
be maintained." For reasons set out above, the proceedings against the interpreter were
irregular and tantamount to an abuse of judicial process. Thus, in the exercise of my powers
of renew, and in relation to the proceedings for contempt of court, I hereby quash the
conviction and sentence. The fine, if paid, is to be refunded to the interpreter.

Conviction quashed

EMMANUEL PHIRI AND OTHERS v THE PEOPLE (1978) Z.R. 79 (S.C.)

SUPREME COURT
SILUNGWE, C.J., BARON, D.C.J., GARDNER AND BRUCE-LYLE, JJ.S. AND MUWO, A.J.S.
10TH, 13TH JANUARY, 1977, AND 5TH JANUARY, 1978
(S.C.Z. JUDGMENT NO. 1 OF 1978)

Flynote

Evidence - Corroboration - Accomplice's uncorroborated testimony - Danger of conviction on

- Necessity for careful warning by judge or magistrate sitting alone or with assessors -
Nature of warning- Whether particular form of words necessary.
Evidence - Corroboration - Accomplice's uncorroborated testimony - When conviction safe -
Necessity to exclude danger of false implication - Necessity for court to set out reasons for
conclusion - Whether faith in honesty of accomplice based only on demeanour and
plausibility of story sufficient - "Something more" - Supporting evidence or circumstances
falling short of strict corroboration.
Evidence - Corroboration - Accomplice's uncorroborated testimony - Danger of conviction on
- Warning - Necessity, for - Distinction between law as to necessity for corroboration
awarding and law as to circumstances in which danger of false implication safely excluded.
Criminal law and procedure - Misdirection by trial court - Appeal - application by appellate
court of proviso to s. 15 (1) of Supreme Covert of Zambia Act - Whether competent by
majority.

Headnote
The appellants were convicted of aggravated robbery; it was alleged that two of them, both
wearing women's stockings over their faces, and one armed with a sub-machine gun and
the other with a pistol, carried out a robbery in which a cash box was stolen which
contained some K20,000 in cheques and a sum of money in cash. The third man involved
was the driver of the "get-away" car. The prosecution case rested on the evidence of two
accomplices, both employees of the firm where the robbery took place. The trial judge
warned himself that it would be dangerous to convict on their uncorroborated evidence; he
held that there was no corroboration or anything else to support their testimony, but that
from their demeanour and the fact that they gave detailed accounts of the offence he was
fully convinced that they were speaking the truth.

It was argued on behalf of the appellants that a conviction on uncorroborated accomplice

evidence and in the absence of any special and compelling grounds was contrary to the
decision of the Supreme Court of Zambia in Machobane (1) and incompetent. It was
submitted by the D.P.P. that, to the extent that Machobane (1) laid down the requirement
of special and compelling grounds before there can be conviction on uncorroborated
accomplice evidence, that case was a departure from settled English law and should be
overruled. He argued that once the court has warned itself of the danger of convicting on
uncorroborated accomplice evidence it is not necessary for the court to set out precisely
what the dangers are or why the court is satisfied that they have been excluded; he
submitted in terms that a court may convict if convinced the accomplice is telling the truth,
and that the faith in the truth of the testimony may be based on nothing more than the
demeanour of the witness and the plausibility or coherence of his story. The D.P.P.
submitted in the alternative that, contrary to the learned judge's finding, there was in fact
evidence which constituted special and compelling grounds within the meaning of
Machobane (1), and that even if the judge be held to have misdirected himself the proviso
should be applied.

Held:
(i) A Judge (or magistrate) sitting alone or with assessors must direct himself
and the assessors, if any, as to the dangers of convicting on the
uncorroborated evidence of an accomplice with the same care as he would
direct a jury and his judgment must show that he has done so. No particular
form of words is necessary for such a direction. What is necessary is that the
judgment show that the judge has applied his mind to the particular dangers
raised by the nature and the facts of the particular case before him.

(ii) The judge should then examine the evidence and consider whether in the
circumstances of the case those dangers have been excluded. The judge
should set out the reasons for his conclusions; his "mind upon the matter
should be revealed" (Chiu Nang Hong (13)).

(iii) As a matter of law those reasons must consist in something more than a
belief in the truth of the evidence of the accomplices based simply on their
demeanour and the plausibility of their evidence - considerations which apply
to any witness. If there be nothing more the court must acquit.

(iv) The "something more" must be circumstances which, though not constituting
corroboration as a matter of strict law, yet satisfy the court that the danger
that the accused is being falsely implicated has been excluded and that it is
safe to rely on the evidence of the accomplice implicating the accused. This is
 what is meant by "special and compelling grounds" as used in Machobane (1).

(v) These circumstances do not lend themselves to close description; the nature
and sufficiency of the evidence in question will depend on the nature of the
facts of the particular case, but as a principle the evidence will be in the
nature of corroboration in that it must of necessity support or confirm.

(vi) There is a distinction between the rule of practice, which now has the force of
a rule of law, that a warning must be given of the dangers of convicting on
uncorroborated accomplice evidence, and the law as to the circumstances in
which, a proper warning having in fact been given, the dangers may safely be
regarded as having been excluded. The rules concerning conviction in the
absence of corroboration are rules of law as developed by the decisions of the
courts.

(Per curiam)

(vii) The modern decisions appear to be adopting a less technical approach to

what is corroboration as a matter of law, and to be recognising that
identification cases are analogous to, if not virtually indistinguishable from,
corroboration cases. The question in all cases is whether the suspect
evidence, be it accomplice evidence, evidence of a complainant in a sexual
case, or evidence of identification, receives such support from the other
evidence or circumstances of the case as to satisfy the trier of fact that the
danger inherent in the particular case of relying on that suspect evidence has
been excluded; only then can a conviction be said to be safe and satisfactory.

(viii) Because a judge or magistrate sitting alone or with assessors sets out his
reasons for his conclusions the test relating to the application of the proviso
should not be applied quite its strictly in Zambia as it is supplied in England.

(ix) In Zambia the test is:

Was there corroborative or supporting evidence of such weight that the
conclusion is not to be resisted that any court behaving reasonably, moving
from the undisputed facts and any findings of fact properly made by the trial
court, would, directing itself properly, certainly have arrived at the same
conclusion?

Dictum of Lord Hewart, L.C.J., in Lewis (23) adopted with modifications.

On the facts, a majority of the members of the court held that the proviso
should be applied. On the question whether in a case in which the matter
turns on the weight to be attached to, and the inference to be drawn from, a
number of items of evidence the proviso can ever be applied by a majority:

(x) (Baron, D.C.J. and Gardner, J.S., dissenting.) There is no cogent or

adequate reason in aid of a concept that with regard to the application of the
proviso a different approach from the normal one, namely, that the majority
view prevails, should be adopted. There is no conflict between the concept of
the majority view and the test for the application of the proviso as the two
are complementary.
 (Per Baron, D.C.J. and Gardner, J.S.) Once differing views are held as to
whether the evidence is of sufficient weight to apply the proviso, to apply it is
contrary to the express terms of the test governing such application.

(Per Gardner, J.S.) If two judges have said that they would have found the
appellants not guilty, then for the rest of the court to apply the proviso by a
majority amounts to their saying that the other two judges are behaving
unreasonably, and not just that they hold a minority opinion.

[Editor's Note. This case, the first in which the Supreme Court has sat as a
five-judge bench, raises apparently for the first time the question whether it
is competent to apply the proviso by a majority. In Chibeka v R. 1959 (1) R.
& N.476 the proviso was so applied ; the report does not disclose any
discussion as to competence.]

Cases cited:

1. Machobane v The People (1972) Z.R. 101.

2. Mhango and Others v The People (1975) Z.R. 275.
3. R. v Baskerville [1916] 2 K.B. 658; [1916-17] All E.R. Rep.38.
4. Davies v D.P.P. [1954] 1 All E.R. 507.
5. D. P. P. v Kilbourne [1973] 1 All E.R. 440.
6. R. v Stubbs Deans 555.
7. R. v Wilkes 7 C. & P. 272.
8. R. v Farler 8 C. & P.107.
9. R. v Tate [1908] 2 K.B. 680.
10. R. v Price [1968] 2 All E.R. 282.
11. D. P. P. v Hester [1972] 3 All E.R. 1056.
12. H. M. Advocate v A.E. (1937) J.C. 96.
13. Chiu Nang Hong v Public Prosecutor [1964] 1 W.L.R. 1279.
14. Katebe v The People (1975) Z.R. 13.
15. Canisio s/o Walwa v R. (1956) 23 E.A.C.A. 453.
16. R. v Haji Mohammed Saleh Mohammed (1933) 15 K.L.R. 109.
17. Kachingeri v R. (1908) 3 E.A. 1.
18. R. v Thakar Singh s/o Kahir Singh (1934) 1 E.A.C.A. 110.
19. Samuel Phiri and Ors v The People 1971 S.J.Z. 200.
20. R. v Turner and Ors (1975) 61 Cr. App. R. 67.
21. R. v Cooper [1969] 1 All E.R. 32.
22. R. v Turnbull and Anor [1976] 3 All E.R. 549.
23. R. v Lewis [1937] 4 All E.R. 360.
24. Kaunda v The People (unreported) Appeal No. 44 of 1977.
25. Musinga Jean Pierre v The People S.C.Z. Judgment No. 14 of 1976.
26. Kalebu Banda v The People S.C.Z. Judgment (1977) Z.R. 169.
27. R. v Pipe (1967) 51 Cr. App. R 17.
28. Benmax v Austin Motor Company limited [1955] A.C. 370.
29. Rickmann v Thierry (1896) 14 R. P.C. 105.
30. R. v Haddy [1944] 1 All E.R. 319.

Legislation referred to:

Supreme Court of Zambia Act, 1973, s. 15 (1).

For the appellants: C. U. Osakwe, Director of legal Aid.
For the respondent: E. L. Sakala, Director of Public Prosecutions, and S. Ponnambalam,
State Advocate.

Judgment

BARON, D.C.J.: delivered the judgment of the court on the legal issues.

The appellants were convicted of aggravated robbery; it was alleged that on the 26th
November, 1973, two of them, both wearing women's stockings over their faces, and one
armed with a sub-machine gun and the other with a pistol, robbed a Securicor employee of
a cash box containing K20,173 in cheques and a sum of money in cash about which the
evidence is conflicting. However, the precise amount of cash is not material; clearly an
armed robbery took place, the only issue being whether the appellants were proved to have
been the robbers. The third man involved in the actual robbery was the driver of the
"get-away" car; although he was unmasked and was seen he, like the other two, was not
identified.

This case raises important legal issues concerning which there appears to be doubt and
confusion. It is in order to make a definitive pronouncement of the law on these issues that
a full bench of this court has sat to hear the appeal. And for similar reasons it will be
convenient to defer a recitation and treatment of the facts until later, and to deal first with
the law.

The learned trial judge approached the matter on the basis that the only evidence against
the appellants was that of two accomplices. He said:

"I have as state witnesses Edward Mwale and Kachabe, . . . self-confessed

accessories before and after the commission of the offence. The advocates for the
defence have helpfully submitted and Mr Heron has conceded that both Kachabe and
Edward Mwale are accomplices, that there is no independent evidence and as such the
court should not convict unless there are special and compelling grounds to do so."

and later in his judgment he said:

"I have already said that Edward Mwale and Kachabe are accomplices and that apart
from their evidence there is no independent evidence whatever the slightest. As such it
would be highly dangerous to convict the accused persons upon their uncorroborated
evidence. However, this court can so convict if fully convinced that they were telling the
truth."

The main ground of appeal is that the learned judge erred in convicting on the
uncorroborated evidence of accomplices and in the absence of any special and compelling
grounds within the meaning of Machobane v The People (1). This was the main submission
in the court below; the trial judge was fully alive to it and met it squarely. He referred to
number of authorities (with which we will deal) and then said:

"I owe no apology for visiting many authorities but I have done so in an attempt to
discover what the Supreme Court had in mind when they said in Machobane's case (1) that
conviction on the uncorroborated evidence of an accomplice can only get their blessing if
there were special and compelling grounds. Their failure to give a definition in Mhango's
case (2) would give one the ammunition to say that the only test is that the court should
convict on the uncorroborated evidence of an accomplice if convinced that the accomplice
was telling the truth provided of course that the court was alive to the danger of so acting in
the absence of corroboration."

In the following concluding passage in his judgment the learned judge then reviewed the
evidence of the
accomplices and expressed himself to be convinced that they were telling the truth:

"Edward Wale gave an account of how on the 16th November ,1973, a Mr Jere
introduced him to No. 2 and how in return he introduced them to Kachabe. Both gave an
account of their subsequent meetings with accused No. 1 and accused No. 2 and what the
discussion was about, namely the Breweries' payroll and beer takings. Kachabe gave an
account of how he found accused No. 3 reversing the car numbers on a green Fiat and how
he was shown a pistol and a sub-machine gun in Jere's house by accused No. 1 and accused
No. 2 and of an account of how on the 26th November, 1973 a few minutes before the
robbery he saw the three accused persons in a green Fiat parked outside the Breweries'
fence and their account of the part they took after the robbery. Judging from the
demeanour of these two witnesses in that they gave their evidence in a clear and lucid
manner - they were fixed and not hesitant - and remained unweakened after rigorous
cross-examination and their detailed account of the events they have given me an
impression that they are honest and reliable witnesses. I am convinced that they have told
the court nothing but the truth. I, therefore, accept their evidence in its entirety. Their
evidence clearly connects the accused persons with the raid at Ndola Breweries on the
morning of 26th November in the year of the Lord, 1973."

Thus the learned judge's faith in the truth of the testimony of the accomplices was based on
their demeanour and the fact that they gave detailed accounts of the events; he relied on
nothing else, and indeed held that there was nothing else to support their testimony. The
crisp issue raised in this appeal is whether it is competent to convict on this evidence. In
Machobane (1) this court held that it was not. The learned Director of Public Prosecutions
submitted that to the extent that Machobane (1) laid down the requirement of special and
compelling grounds before there can be a conviction on uncorroborated accomplice evidence
that case was a departure from the settled English law on the subject and should be
overruled. He submitted in the alternative that, contrary to the learned judge's finding,
there was in fact evidence which met the Machobane (1) test and that even if the judge be
held to have misdirected himself this court should apply the proviso.

It is convenient to set out the D.P.P.'s submission as to what the law is on the main issue
because it serves to underline the basic problem. He submitted that the English authorities,
from R. v Baskerville (3) to Davies v D.P.P. (4) and the recent case of D.P.P. v Kilbourne
(5), are all to the effect that a conviction after a direction to the jury which does not contain
a proper warning will he quashed unless the proviso can be applied, but that a conviction
after a proper warning may stand notwithstanding that the accomplice evidence is
uncorroborated unless the verdict is otherwise unsatisfactory.He argued that what is
essential is the warning, and that once an adequate warning has been given the factors to
which the court will look are the credibility of the witness and the probative value of the
facts to which he testifies; the law does not require anything more. He submitted in terms
that once the jury has been properly warned that it is dangerous to convict without
corroboration it may convict if convinced the accomplice is telling the truth, and that the
faith in the truth of the testimony may be leased on nothing more than the demeanour of
the witness and the plausibility or coherence of his story.

To an extent this problem has been overtaken by legislation, both in England and here; it is
affected also by the fact that we do not have juries here. But it is important nonetheless to
understand the law as it was in England before the enactment of the Criminal Appeal Act,
1966, particularly since Machobane (1) was decided before the corresponding Zambian
provision (s. 15 (1) of the Supreme Court of Zambia Act, 1973) was enacted. We propose
therefore to consider (1) the English law prior to 1966; (2) the law in Zambia prior to 1973,
bearing in mind particularly that we have no juries; (3) whether Machobane (1) was a
departure; (4) the law today.

The pre-1966 Law in England

Prior to 1907 there was no appeal from the verdict of a jury, however unreasonable it might
be. Indeed, unless the trial court reserved a point of law there was nothing in the nature of
an appeal (save in limited cases on which it is not relevant to elaborate) even on a point of
law. In R. v Stubbs (6) a point was reserved as to the correctness of a direction to the jury
concerning accomplice evidence, and although the actual direction was disapproved the
question was held not to be one of law but one of practice, and therefore beyond the
jurisdiction of the court. Jervis, C.J., felt constrained to say:

"We cannot interfere in this case, although we may regret the result that has been
arrived at . . . but a jury may, if they choose, act on the unconfirmed testimony of an
accomplice; in this case they have acted on the evidence before them, and we cannot
interfere."

This rule had its roots deep in the history of the jury. Originally jurors came from the local
community; they had personal knowledge of the events being inquired into and the people
involved- they were witnesses as well as judges of fact, and understandably perhaps their
findings of fact would not be questioned. Even though by the middle of the seventeenth
century jurors had ceased to be witnesses, the rule that they were the final judges of fact
endured. There were harsh results, particularly if the jury was not properly directed, and by
the nineteenth century most judges were seeking to prevent "regrettable" results by their
directions to juries. Thus, they were telling them that although it was legally competent for
them to act on the unconfirmed testimony of an accomplice it was dangerous to do so, and
that they should not convict unless the accomplice was confirmed. For example, Alderson,
B., in R. v Wilkes (7) said:

"You may legally convict on the evidence of an accomplice only if you can safely rely
on his testimony; but I advise juries never to act on the evidence of an accomplice, unless
he is confirmed as to the particular person who is charged with the offence."

and Lord Abinger, C.B., in R. v Farler (8) said:

"It is a practice which deserves all the reverence of law, that judges have uniformly
told juries that they ought not to pay any respect to the testimony of an accomplice, unless
the accomplice is corroborated in some material circumstance . . . that affects the identity
of the party accused."

Jervis, C.J., in Stubbs (6) said:

 "It is not a rule of law that an accomplice must be confirmed in order to render a
conviction valid; and it is the duty of the judge to tell the jury that they may, if they please,
act on the unconfirmed testimony of an accomplice. It is a rule of practice, and that only,
and it is usual in practice for the judge to advise the jury not to convict on the testimony of
an accomplice alone, and juries generally attend to the direction of the judge, and require
confirmation."

and, Parke, B., in the same case, in a judgment which was specifically approved in
Baskerville (3) as correctly stating the law, said:

"During the time that I have been upon the bench, now more than a quarter of a
century, I have uniformly laid down the rule of practice as it has been stated by the Lord
Chief Justice. I have told the jury that it was competent for them to find a prisoner guilty
upon the unsupported testimony of an accomplice; but that great caution should be
exercised, and I have advised them - and juries have acted on that advice - not to find a
prisoner guilty on such testimony unless it was confirmed. There has been a difference of
opinion as to what corroboration is requisite; but my practice has always been to direct the
jury not to convict unless the evidence of the accomplice be confirmed, not only as to the
circumstances of the crime, but also as to the identity of the prisoner. An accomplice
necessarily knows all the facts of the case, and his story, when the question of identity is
raised, does not receive any support from its consistency with those facts. The Chairman in
this case has departed from the usual practice; but the jury having acted upon the evidence
the Secretary of State only can interfere."

We need not dwell on the difference of opinion, to which Parke, B., referred as to what
corroboration was required; certainly since Baskerville (3) - no one has doubted that there
must be corroboration also as to the identity of the culprit.

There has been a more important difference, which was finally settled in Davies (4,)
between what Lord Simonds called the "discretionary" and the "peremptory" schools of
thought; the one regarded an accomplice warning as being within the judge's discretion to
give or to withhold, while the other, after 1907 and particularly after Baskerville (3),
considered that what had been no more than a practice manifested "an increasing tendency
to assume the hard lineaments of a rule of law" although in some decisions even after
Baskerville (3) the- "discretionary" view still found expression. Davies (4) settled the
difference in favour of the peremptory school, specifically approving Baskerville (3) on this
point.

The Criminal Appeal Act 1907 gave power for the first time to set aside the verdict of a jury.
It enjoined the court to allow an appeal if it thought that the verdict of the jury should be
set aside on the ground that it was unreasonable or could not be supported having regard to
the evidence, provided that it could dismiss the appeal if it considered that no substantial
miscarriage of justice had actually occurred. The precise effect and proper application of the
new provisions appear to have been uncertain, and in Baskerville (3) a full bench of the
Court of Criminal Appeal sat "to quiet doubts and settle the law" although the case itself
raised a very simple issue, namely whether, a perfectly adequate accomplice warning
having been given to the jury, there was on the facts the corroboration for which the
warning called. The court held that there was, but took the opportunity, having regard as
Lord Reading said "to the difficulty of reconciling all the opinions expressed in the cases
cited, and to the general importance of reviewing and re-stating the law applicable to
corroboration of the evidence of accomplices", to deal with the subject in depth.
Understandably, in these circumstances some of what was said was obiter, but as Lord
Simonds observed the court (Lord Reading, C.J., Scrutton, Avory, Rowlatt and Atkin, JJ.)
commands high respect, and subject to certain qualifications to which Lord Simonds drew
attention the case was specifically approved in Davies (4). It is worth repeating in full the
famous passage from the judgment of Lord Reading, C.J., in Baskerville (3) at p. 663:

"There is no doubt that the uncorroborated evidence of an accomplice is admissible

in law. But it has long been a rule of practice at common law for the judge to warn the jury
of the danger of convicting a prisoner on the uncorroborated testimony of an accomplice or
accomplices, and, in the discretion of the judge, to advise them not to convict upon such
evidence; but the judge should point out to the jury that it is within their legal province to
convict upon such unconfirmed evidence. This rule of practice has become virtually
equivalent to a rule of law, and since the court of Criminal Appeal Act came into operation
this Court has held that, in the absence of such a warning by the judge, the conviction must
be quashed. If after the proper caution by the judge the jury nevertheless convict the
prisoner, this Court will not quash the conviction merely upon the ground that the
accomplice's testimony was uncorroborated. It can but rarely happen that the jury would
convict in such circumstances.In considering whether or not the conviction should stand,
this Court will review all the facts of the case, and will bear in mind that the jury had the
opportunity of hearing and seeing the witnesses when giving their testimony. But this Court,
in the exercise of its powers, will quash a conviction even when the judge has given to the
jury the warning or advice above mentioned if this Court, after considering all the
circumstances of the case, thinks the verdict unreasonable, or that it can not be supported
having regard to the evidence."

With the passage of time the faint qualification of "virtually equivalent'' disappeared; by
1954 the rule had acquired the force of a rule of law, and if the judge failed to warn the jury
in accordance therewith the conviction would be quashed, even if in fact there were ample
corroboration, unless the appellate court could apply the proviso (Davies (4) at p. 513).
Unaccountably, the judgment in Baskerville (3) makes no mention of the proviso, and as
Lord Simonds in Davies (4) pointed out R. v Tate (9), cited by Lord Reading as authority for
the proposition "that in the absence of a warning the conviction must be quashed", is
actually to the contrary effect, the court there saying that it would have dismissed the
appeal "notwithstanding the judge's departure from the practice if we thought that there
was in fact substantial corroboration upon the evidence".

There are two aspects of the foregoing passage in Baskerville (3) which seem to us to be of
significance but which do not appear to have attracted comment, judicial or otherwise - the
context in which Lord Reading refers to the judge's discretion, and the phrase "it can but
rarely happen". Lord Reading, speaking of the long established rule of practice to administer
an accomplice warning, added "and, in the discretion of the judge, to advice them not to
convict upon such evidence". The cases he cited made no distinction between the
accomplice warning and the advice to acquit (see for instance Wilkes (7), Farler (8) and
Stubbs (6); they indicate that the two went together. But Lord Reading separated them,
and that he did so deliberately is confirmed by his speaking of "warning or advice" rather
than "warning and advice". This view is further strengthened by the statement that the rule
of practice had become "virtually equivalent to a rule of law; it would be inconsistent to
speak of the rule as to accomplice warnings in those terms and in the same sentence to say
that it is within the discretion of the judge whether to give or to withhold the warning, but
there is no inconsistency if the court was saying that the judge should always give the
accomplice warning but that it is a matter for his discretion whether he adds positive advice
to acquit. This construction commends itself to us as a matter of logic quite apart from
being in our view the proper construction of the language used; we can see every reason to
differentiate between giving an accomplice warning without more, and giving such a
warning and in addition positive advice to acquit. In particular we can see the force of such
a distinction in corroboration cases other than true accomplice cases, (Baskerville (3) was a
sexual case), where one can somewhat more readily envisage circumstances in which a jury
could properly be satisfied that the dangers of which they have been warned have been
excluded notwithstanding the absence of corroboration. The decision whether to give
positive advice to acquit would thus depend on whether, in the opinion of the judge, the
case Divas one in which there was nothing on the basis of which the jury could possibly be
satisfied that the dangers in question had been excluded; if there were some evidence on
which the jury could properly be so satisfied the judge would refrain from giving positive
advice to acquit and thus leave the matter to the jury.

That Lord Reading recognised that such cases were the exception rather than the rule is
demonstrated when he says that "it can but rarely happen" that a jury will convict after a
proper caution. These words cannot be dismissed as mere rhetoric; we are satisfied that
they mean what they say, namely that the circumstances in which a jury might properly
convict in the absence of corroboration will be rare - a view with which we respectively
agree.

But this conclusion does not rest simply on phrase; more importantly, it rests on the
nature of accomplice evidence and the dangers inherent therein, and a consideration of the
kinds of circumstances in which those dangers may safely be regarded as having been
excluded. These vary from case to case, and it is particularly important to remember that
the law relating to accomplices is but one aspect of a wider subject, the law relating to
corroboration. It may frequently be both inappropriate and unhelpful to cite dicta from a
rape case when dealing with case such as the one now before us, and it is significant that
nearly all the cases cited to us were sexual cases, although some were also accomplice
cases in the sense that the suspect witnesses would also be accomplices in the of fence
charged. The nature of the case must inevitably affect the kind of danger of which a jury
should be warned and the kind of warning it should be given. Lord Hailsham stressed this
point in Kilbourne (5) at p. 454:

"This prompts me to point out that although the warning must be given in every
appropriate case, the dangers to be guarded against are quite different. Thus the evidence
of accomplices is dangerous because it may be perjured. The evidence of Lady Wishfort
complaining of rape may be dangerous because she may be indulging in undiluted sexual
fantasy. A Mrs Frail making the same allegation may need corroboration because of the
danger that she does not wish to admit the consensual intercourse of which she is ashamed.
In another case the danger may be one of honestly mistaken identity as when the
conviction of the accused depends on an identification by a single uncorroborated witness to
whom he was previously unknown. These matters should, in suitable cases, be explored
when the nature and degree of danger is being discussed, as suggested in R. v Price (10)."

While therefore there are certain principles common to all corroboration cases, each
category of case has its own inherent dangers, and different cases within each category
may, depending on their facts, give rise to different dangers. It is therefore of little
assistance to a jury to be told that it is dangerous to convict on the uncorroborated
evidence of an accomplice or a prosecutrix, as the case may be, unless the dangers and the
reasons for the warning are explained. How otherwise can the jury decide whether the
dangers have been excluded? Of course, as Lord Hailsham said in Kilbourne (5), referring
with approval to the opinions expressed in D.P.P. v Hester (11):
 ". . . it is wrong for judge to confuse the jury with a general if learned disquisition
on the law. His summing up should be tailor made to suit the circumstances of the particular
case."

Nor, as Sachs, L.J., said in R. v Price (10), is there any

"magic formula which has to be used with regard to any warning which is used, nor
is there such a formula as regards the circumstances in which, despite the absence of
corroboration, they can act on the evidence of an accomplice."

But it is clear, particularly from the concluding portion of this last dictum, that while there is
no magic formula to be used the judge should explain the dangers in the particular case and
explain also the circumstances in which the jury can convict despite the absence of
corroboration. We are dealing here with what may be termed a true accomplice case, which
we use as a shorthand term for a case where the suspect witnesses were either full
participants in the perpetration of an offence or were deeply involved as accessories, as
distinguished from the doctor and patient situation in abortion cases, or the payer and
receiver of bribes in corruption cases, or the cases of witnesses who for one reason or
another may have a purpose of their own to serve.

The reason why it is dangerous to convict on the uncorroborated evidence of a true

accomplice is that because of his familiarity with the circumstances of the offence he is in a
position to put forward a very plausible story which in the nature of things it will be difficult
if not impossible to shake in cross-examination, because in many cases the only point on
which he is not telling the truth is as to the identity of one or more of his companions. As
Parke, B., put it in Stubbs (6) in the passage already cited:

"An accomplice necessarily knows all the facts of the case, and his story, when the
question of identity is raised, does not receive any support from its consistency with those
facts."

Of course, the true accomplice will usually have been given an indemnity and may be said
to have no motive to implicate an innocent person. But this argument fails to differentiate
between a motive on the part of the accomplice to exculpate himself and a motive to
implicate an innocent person for reasons quite unconnected with self-exculpation. The
desire to exculpate himself is not the normal basis for the cautionary rule in the case of the
true accomplice; the danger here will usually be that he may have a motive to protect the
real culprit. There may be several possible reasons; for instance, it may be based simply on
relationship or friendship with the real culprit or culprits, or it may be based on a promise or
hope that if he protects the real culprits the accomplice will receive a share in the proceeds
of the crime, which may be traced if the real culprits are disclosed; or the witness may have
received threats of personal violence if he discloses the identity of the real culprits. The
danger of which the jury must be warned is that the accomplice is falsely implicating the
accused; the reasons for the danger - the possible motives of the accomplice - may be
various, and may vary from case to case, and this is why the direction to the jury should be
tailor-made to suit the circumstances of the particular case. Whatever the language used,
however, it must be explained to the jury that not only must they believe the accomplice
just as they must believe any witness on whose evidence they propose to rely, but they
must in addition be satisfied that the risk has been excluded that they are being deceived
by a plausible witness into believing him on the one vital issue, namely the identity of the
culprit. Lord Hailsham stressed this point in Kilbourne (5) when he said at p. 452 (he was
referring to a lengthy extract he had just cited from the Scottish case of H.M. Advocate v
A.E. (12):

"In addition to the valuable direction to the jury, this summing-up appears to me to
contain a proposition which is central to the nature of corroboration, but which does not
appear to date to have been emphasised in any reported English decision until the opinion
delivered in D.P.P. v Hester (11) by Lord Morris of Borth-y - Gest although it is implicit in
them all. Corroboration is only required or afforded if the witness requiring corroboration or
giving it is otherwise credible. If his evidence is not credible a witness's testimony should
be rejected and the accused acquitted, even if there could be found evidence capable of
being corroboration in other testimony. Corroboration can only be afforded to or by a
witness who is otherwise to be believed. If a witness's testimony falls of its own inanition
the question of his needing, or being capable of giving, corroboration does not arise."

This court had made the saline point in Machobane (1) when we said at p. 103 that:

"To say of the witnesses with an interest that they seemed to be honest does not
constitute (a special and compelling) ground; if they did not give an impression of honesty
the question of accepting their evidence would not arise on any test."

Although therefore the strict law prior to 1966 was that the jury could convict in spite of the
absence of corroboration if "fully convinced" that the accomplice was speaking the truth, the
cases show that the courts did not expect this to happen and that in practice it did not
happen. If the jury could be "fully convinced" by nothing more than the demeanour of the
accomplice in the witness box and the plausibility of his story - factors which apply to every
witness - accomplice evidence would be on a footing no different from that applicable to the
evidence of any witness. But the true accomplice is in fact very different from the ordinary
witness; because of the obvious dangers of false implication, and because his knowledge of
the crime gives him a special opportunity to be a plausible and impressive witness,
additional safeguards are necessary. In the case of an accomplice there must, in addition to
the faith in his honesty' be other evidence which, though not constituting corroboration in
law, yet satisfies the jury that the danger that the accused is being falsely implicated has
been excluded and that it is safe to rely on the evidence of the accomplice implicating the
accused. The nature and sufficiency of this supporting evidence will depend on the
circumstances of the particular case, a subject to which we will return.

Lord Hailsham in Kilbourne (5) dealt also with the dangers of the evidence of fellow
accomplices; he said at p. 453:

" Obviously where two or more fellow accomplices give evidence against an accused
their evidence is equally tainted. The reason why accomplice evidence requires
corroboration is the danger of a concocted story designed to throw the blame on the
accused. The danger is not less, but may be greater, in the case of fellow accomplices."

And then at p. 454, speaking of the general rule for which the Crown contended that no
persons who came within the definition of accomplice may be mutually corroborative, he
held that there was no such general rule, and continued:

"In particular it does not necessarily apply to accomplices of Lord Simonds, L.C.'s
third class" [he was referring to Davies (4)] "where they give independent evidence of
separate incidents' and where the circumstances are such as to exclude the danger of a
jointly fabricated story."
These last words go to the root of the danger, and of a proper direction. The danger is of a
fabricated story; the essence of a proper direction is that the jury must be satisfied that the
circumstances are such as to exclude that danger. If there are no such circumstances there
should be an acquittal.

The pre-1973 Law in Zambia

In Zambia we have no juries. We could never have been faced with a situation such as
obtained in Stubbs (6), where "regrettable" result was arrived at but the appeal court
could not interfere. Of course, after 1907 that conviction would have been set aside unless
the proviso could have been applied, since no proper caution had been given to the Jury;
but prior to 1966, and perhaps still today, it was theoretically possible in England,
particularly if positive advice to acquit had not been given for a jury to convict in spite of a
proper direction in circumstances in which the trial judge would not himself have convicted
had the decision rested with him. In Zambia there was never even the theoretical
possibility; if the judge as the trier of fact considered, even before 1973 that the evidence
was insufficient to support a conviction having regard to the principles of law applicable to
the case, he would obviously acquit.

But the fact that we have no juries did not mean - and still less does it mean since 1973 -
that it was sufficient for the court simply to warn itself that it was dangerous to convict
without corroboration. The D.P.P. submits that an experienced judge must be assumed to
know what the dangers are and to have heeded them, and that it is not necessary for him
to spell them out or to explain in his judgment what circumstances have satisfied him that
they have been excluded. These are untenable propositions. Even experienced judges can
make mistakes; unless the judge's reasoning is disclosed it is impossible for an appellate
court to know whether the decision was influenced by a misdirection of law or fact. The
judge's direction to a jury is before the appellate court, and material misdirection will, save
if the proviso can be applied, result in the conviction being quashed, equally, and for similar
reasons, a judge's direction to himself must be before the appellate court. Lord Donovan
said in
Chi Nang Hong v Public Prosecutor (13) at p. 1285:

"Their Lordships would add that even had this been a case where the judge had in
mind the risk of convicting without corroboration, but nevertheless decided to do so because
he was convinced of the truth of the complainant's evidence, nevertheless they do not think
that the conviction could have been left to stand. For in such a case a judge, sitting alone,
should, in their Lordships' view, make it clear that he has the risk in question in his mind,
but nevertheless is convinced by the evidence, even though uncorroborated, that the case
against the accused is established beyond any reasonable doubt. No particular form of
words is necessary for the purpose; what is necessary is that the judge's mind upon the
matter should be clearly revealed."

We respectfully agree. This court's experience has been that convictions are not infrequently
based on inferences from primary facts which, as matter of logic, we have been unable to
accept. Equally, a magistrate or even judge may be mistaken as to what precisely are the
dangers of convicting without corroboration in the particular case before him; or he may be
mistaken in concluding that the circumstances which are admittedly present can safely be
regarded as excluding the dangers. But unless the court's mind is revealed no one can say
whether it proceeded from erroneous premises or on false logic. It is essential that the
judgment state, just as a judge would state to a jury, the particular dangers inherent in the
circumstances of the particular case; and the judgment should explain what are the
circumstances which satisfy the court that the particular dangers have been excluded, and
why-just as the judge's direction to a jury would explain what circumstances are capable of
so satisfying them. Of course, jury does not give reasons for being so satisfied, but a judge
sitting alone must.

The Decision in Machobane (1).

The accused had been convicted on the evidence of a father and son both of whom were
specifically held by the learned trial judge to be witnesses with possible motive to
exculpate themselves by putting the blame on the accused. The learned judge then said:

"Having seen the witnesses I accept Julius and his son as witnesses of truth. They
both seemed to me to be honest. The accused did not impress me at all."

We said at p. 103:

"It is well settled that a conviction on the uncorroborated evidence of an accomplice

is competent as a matter of strict law; the warning that is given to juries as to the danger of
convicting on the uncorroborated testimony of an accomplice is a rule of practice and not a
rule of law. But, as Reading, L.C.J., said in R. v Baskerville (3):

'This rule of practice has become virtually equivalent to a rule of law . . . It can but rarely
happen that the jury would convict (after the proper caution by the judge).'

This puts the matter much higher than a straightforward issue of credibility; an
accused should not be convicted on the uncorroborated testimony of witness with a
possible interest unless there are some special and compelling grounds. In the present ease
there was no corroboration of the evidence of Julius and his son, and there were no special
and compelling grounds for a conviction. To say of the witnesses with an interest that they
seemed to be honest does not constitute such a ground; if they did not give an impression
of honesty the question of accepting their evidence would not arise on any test."

We made no attempt in Machobane (1) to suggest what circumstances might constitute

"special and compelling grounds" because it was unnecessary to do so; there was nothing
save the evidence of the suspect witnesses and it was unnecessary to go further than to
stress that there has to be something snore - that it is insufficient for a conviction simply to
believe the suspect witnesses for the same reasons as apply to any witness.

In a sense the position is the same in lithe present case since the learned judge has
specifically held that there was no corroboration and has not purported to rely on anything
save his faith in the truthfulness of the accomplices on the grounds already quoted. But the
D.P.P. has submitted that there was in fact other evidence and has asked us to apply the
proviso; for this reason, and also because we have been asked to dispel doubts and explain
the phrase, it is necessary to consider what circumstances may constitute special and
compelling grounds within the meaning of Machobane ( 1).

Needless to say, the necessity for any such grounds arises only where there is no
corroboration. Hence such grounds can only be circumstances which, though not
constituting corroboration strictly so called, yet satisfy the court that the dangers of
convicting without corroboration have been excluded and that it is safe to rely on the
accomplice evidence implicating the accused. Usually evidence of this kind will he in the
nature of corroboration; it will support or confirm, notwithstanding that it is not
corroboration in strict law. This may be because of a technical rule, such as the rules
concerning mutual corroboration and self-corroboration; for instance, at the time
Machobane (1) was decided the former rule had not been qualified by Hester (11) and
Kilbourne (5), and the circumstances of the latter case would have been regarded not as
corroboration but as special and compelling grounds. Corruption cases involving several
counts give rise to similar circumstances; where a government servant is alleged to have
accepted bribes from several different people in return for granting citizenship, if the court
is satisfied that the circumstances are such that the danger of the various accomplices
having jointly fabricated a story has been excluded this would, at the time of Machobane
(1), have been a special and compelling ground, and would today be held to be
corroboration in accordance with the modern less technical approach to that word. It may
also be a special and compelling ground that the circumstances are such as completely to
negative any motive for false implication of the accused. In Katebe v The People (14) the
appellant was convicted of indecent assault, we said:

"The reasons for (the cautionary rule in sexual cases) are legion . . .; obviously
there are circumstances in which a woman will make false allegations - in order to protect a
boyfriend, or in circumstances where she may fear the anger of a husband or a father. In
the present case there is nothing to suggest that any of these factors is present. We can see
no motive for the prosecutrix in this case deliberately and dishonestly making a false
allegation against the appellant. This case is in practice no different from any other in which
the conviction depends on the reliability of the evidence of complainant as to the identity
of the culprit, and this is a 'special and compelling ground' which would justify a conviction
on the uncorroborated testimony of a prosecutrix."

The law in Zambia as laid down in Machobane (1) was that where there was nothing save
the uncorroborated evidence of the suspect witness the court must acquit, but where there
was something more, though not constituting corroboration, which satisfied the court that
the dangers of convicting without corroboration had been excluded, it could convict. This is
the meaning of "special and compelling grounds". This was not a departure from the English
Law, but simply a positive formulation of the application of the English rules and the effect
of the cases in a system where the trier of fact is a judge or magistrate sitting alone (or
very exceptionally with assessors).

We turned then to consider certain East African cases which dealt specifically with the
position. of a judge or magistrate sitting alone or with assessors. One of these, Canisio s/o
Walwa v R. (15), was cited by the learned trial judge apparently as support for his
conclusion. The appellant, a. station master, had been convicted in the magistrate's court of
the theft of certain bales of material; the evidence against him was principally that of two
men who were clearly accomplices, and two others, points-men working directly under the
appellant, who were treated by the magistrate as accomplices although he found them to
have no guilty knowledge. The appeal to the High Court was dismissed because it was held
that the magistrate had drawn an incorrect inference from the facts and that the points-men
should not have been treated as accomplices. On further appeal the East African Court of
Appeal upheld this decision, so that the second ground of appeal - that it was riot open in
law to convict upon the uncorroborated testimony of accomplices - did not arise; but the
court said: "Nevertheless, we think it right to record our view as to this second ground also,
since it was submitted by counsel on both sides that it would be of much assistance if we
were to put the matter beyond doubt. Thus, although the views in question were obiter they
were considered views, designed to resolve doubts.

Counsel for the appellant submitted that in the East African Territories when a judge or
magistrate sits alone or with assessors the court should never convict "in the circumstances
under consideration". Precisely what was meant by this phrase is not stated expressly, but
from the wording of the ground of appeal and from the reference in the judgment to the
submission that the rule contended for applied to the territories from which appeals lay to
that court it seems that counsels' submission was that the cases in the East African Court of
Appeal had established a rule of law "peculiar to those territories" that such a court should
never convict on uncorroborated accomplice evidence. But the cases cited do not support
the proposition formulated in these absolute terms; thus, R. v Haji Mohammed Saleh
Mohammed (16), a decision of the same court, said that:

"in the absence of special or exceptional circumstances a conviction before a Judge

or Magistrate sitting alone, resting on uncorroborated accomplice evidence, is so dangerous
that it should not be upheld."

The court in that case referred to an earlier decision of its own, Kichingeri v R. (17), in
which it upheld a conviction on uncorroborated evidence "entirely on account of the
exceptional circumstances". And in R. v Thakar Singh s/o Kahir Singh (18), another decision
of the same court, the following passage appears:

"As regards corroboration a number of cases have been cited, but it seems necessary
to refer only to the decision of the Court of Appeal for Eastern Africa in the case of Haji
Mohammed Saleh (16), which settles the law applicable to this country to the effect that,
save in exceptional cases, a conviction cannot be based upon the uncorroborated evidence
of an accomplice. It is clear from the case and from the case of Kichingeri and Others (17),
that the exception arises and the evidence of an accomplice without corroboration is
sufficient, not in cases which are usually difficult of proof by other means, nor upon the trial
of certain particular offences, but only when the circumstances of the case and the relation
of the accomplice to the offence committed appear to justify the Court in acting upon his
evidence."

Thus in all these cases (and indeed in other decisions of the same court cited in Canisio
(15), the prohibition against conviction on uncorroborated accomplice evidence is not
expressed to be absolute but is qualified by expressions such as "save in special or
exceptional cases".

Commenting on the foregoing passage from Thakar Singh (18) the court in Canisio (15) said
at p. 457:

"If this court there intended to read R. v Haji Mohammed Saleh's case (supra) as
laying down a rule of law prohibiting a conviction on accomplice evidence alone 'save in
exceptional cases', the decision must be regarded as not only irreconcilable with section 133
of the Indian Evidence Act but also as now overruled by Davies v D.P.P. (4), in which the
opinion of their Lordships contained no suggestion of any such legal requirement. While
adopting the latter part of the passage which we have cited from the judgment in R. v
Thakar Singh (18) as a general indication as to when 'the exception arises' in practice, we
cannot accept the earlier part of that passage as today containing the true rule of law
applicable to any of the territories with which this Court is concerned. R .v Haji Mohammed
Saleh (16) must, as we have said, be treated not as having 'settled the law' but as having
expressed a rule of practical prudence to the effect that, save in exceptional cases, a
conviction should not - not 'cannot' - be based upon the uncorroborated evidence of an
accomplice."
We are bound to say, with the greatest respect, that we find this a contradictory passage.
The court professes to differ from Haji Mohammed Saleh (16) and Thakar Singh (18) while
at the singe time stating the law in almost identical terms. The only difference is that while
Thakar Singh (18) says that, save in exceptional cases, a conviction cannot be based upon
the uncorroborated evidence of an accomplice, Canisio (15) avoids the proposition that this
is a rule of law, preferring to describe it as "a rule of practical prudence to the effect that,
save in exceptional cases, a conviction should not - not "cannot" - be based on the
uncorroborated evidence of an accomplice." A great deal of the law of evidence consists of
rules of practical prudence; the rules are still rules of law. The basic distinction sought to be
drawn in the passage just cited is between "should not" and "cannot". This distinction went
to the root of the law in this area in England; for reasons we have already discussed a
verdict of a jury could never be upset prior to 1907 no matter how unreasonable or
regrettable it might have been (Stubbs (6)), and after 1907 it could be upset only if it was
unreasonable or could not be supported having regard to the evidence (Baskerville (3)).
Thus even after 1907, as a matter of strict law a jury could convict even though the judge
might be of the view that it should not. But where a judge or magistrate sits alone it seems
to us, with the greatest respect to the court in Canisio (15), that the distinction has no
application; if according to the existing rules of law, or practical prudence, or whatever else
one wishes to call the principles by which the judge is guided, he should not convict save in
"special or exceptional circumstances", and he nevertheless does so without holding that
such circumstances are present, the conviction will inevitably be set aside on appeal unless
the proviso can be applied. This is not a situation in which the judge has a discretion;
"should not" does not; mean "may".

It is important to distinguish between the rule of practice, which now has the force of a rule
of law, that a judge should warn a jury of the dangers of convicting on uncorroborated
accomplice evidence, and the law as to the circumstances in which, a proper warning having
in fact been given, the dangers may safely be regarded as having been excluded.

These are two separate and distinct considerations, notwithstanding that the second will in
an appropriate case form part of the judges direction to the jury. The rules concerning
conviction in the absence of corroboration are rules of law as developed by the decisions of
the courts, and particularly in regard to judges sitting alone are correctly stated in the East
African cases we have cited - including, as we have shown, Canisio (15) itself.

The attitude of the court in Canisio (15) seems to have stemmed in part from a view of
Davies (4) two which with respect we cannot subscribe, it being said that the case had
enunciated rules which were exhaustive and which had overruled Haji Mohammed Saleh
(16). Since it has similarly been suggested to us that Machobane (1) was contrary to the
law as authoritatively laid down in Davies (4), it is necessary to examine that case and to
see exactly what it decided. Davies was one of a number of youths who had attacked four
others, one of whom died as a result of knife wounds; Davies was alleged to have been the
one who used the knife. Lawson was another member of the gang, but he and three others
appear to have desisted from the attack before the knife was used and there was no
evidence that any of them knew that Davies had a knife; no evidence was offered against
these four and they were found not guilty of murder. At a subsequent trial (the jury
disagreed at the first) Lawson was called as a witness for the prosecution; in his
summing-up the judge did not warn the jury that Lawson's evidence was, or should be
treated as, that of an accomplice. It was submitted for the appellant that this failure was a
misdirection. There was in fact ample corroboration, but it was not contended by the Crown
that, if the "accomplice warning" should have been given' the proviso could be applied. The
appear thus turned principally on the absence of an accomplice warning; if Lawson's
evidence was, or should have been treated as, that of an accomplice, the appeal would have
succeeded.

The problems raised by the main ground of appeal were stated by Lord Simonds, L.I.C., at
p. 510 in these terms:

"(A) What is the scope and effect of the rule that a judge ought to warn juries in
connection with the evidence of an 'accomplice'?
(B) What is an 'accomplice' within the rule? (C) Whatever be the true answers to these
questions, what (if any) is their application to the evidence of Lawson?"

Lord Simonds proceeded to deal with the history of two conflicting lines of cases and then
said at p. 513:

"The true rule has been, in my view, accurately formulated by the appellant's
counsel in his first three propositions, more particularly in the third. These propositions as
amended read as follows: First proposition: In a criminal trial where a person who is an
accomplice gives evidence on behalf of the prosecution, it is the duty of the judge to warn
the jury that, although they may convict on his evidence, it is dangerous to do so unless it
is corroborated.
Second proposition: This rule, although a rule of practice, now has the force of a rule
of law. Third proposition: Where the judge fails to warn the jury in accordance with this
rule, the conviction will be quashed, even if in fact there be ample corroboration of the
evidence of the accomplice, unless the appellate court can apply the proviso to s. 4 of the
Criminal Appeal Act, 1907.'

Lord Simonds then proceeded to examine the remaining questions namely what is an
accomplice within the rule and whether Lawson was an accomplice. He came to the
conclusion that he was not, and that therefore an accomplice warning was not necessary.

It is important to appreciate that in the area of question (A) as posed by Lord Simonds the
case considered simply the scope and effect of the rule that a judge ought to warn the jury
in connection with the evidence of an accomplice; it was concerned with the duty of the
judge and the effect of the failure of the judge to do that duty. The case on this point simply
says that if the judge fails to give the jury a proper warning concerning the evidence of an
accomplice the conviction will be quashed unless the appellate court can apply the proviso.
This proposition was not new and would hardly have justified the matter going to the House
of Lords; the importance of the case is that it held that a person is not to be treated as an
accomplice unless he is particeps criminis in respect of the actual crime charged in the case
of felony, (or comes within one of Lord Simonds' other two classes), a point with which we
are not concerned. The question did not arise of the kind of circumstances in which it would
be considered safe to rely on the uncorroborated evidence of an accomplice, and it was not
considered; it cannot therefore be said that the rules set out, i.e. the three propositions
cited above, are exhaustive of the law in this area. They have no bearing on the issue which
arose in Canisio (15) and which arises in the present case; the court in Davies (4) was
laying down rules on the issues before it and not on issues which did not remotely arise.

With great respect to the court in Canisio (15) we are therefore of the view that Davies (4)
cannot be said to have overruled Haji Mohammed Saleh (16). Furthermore, as we have
said, we are unable to distinguish between the conclusions reached in that case and those
reached in Canisio (15), both of which cases state the law correctly save to the extent that
the latter draws a distinction between "should not" and "cannot", a distinction which seems
to us to have no application where a judge sits alone.

The court in Canisio (15) was influenced also by the construction it placed on s. 133 of the
Indian Evidence Act, which has no counterpart in our law.

Finally as to the pre-1973 law, we must refer to a decision of this court not cited to us
during the argument (nor during the argument in Machobane (1)). In Samuel Phiri and Ors
v The People (19) the three appellants had been convicted of murder; the evidence against
them was largely that of an accomplice. The trial judge found that there was corroboration
implicating the first appellant, but none as regards the other appellants. This court cited the
following passage from Chiu Nang Hong (13), Privy Council case:

"On appeal, the Court of Appeal decided it could not interfere with the judge's
judgment, though merely reading the notes of evidence the members of the court might
feel something less than satisfaction as to the guilt of the appellant. But the judge had seen
and heard the witnesses; he was aware of the danger of convicting without some
corroborative evidence of the complainant's story, and he knew that there was no such
evidence. Nevertheless he was convinced of the truth of the complainant's story, and in that
position was entitled in law to convict the appellant."

This court then continued:

"On appeal to the Privy Council the Judicial (committee approved that statement of
the law . . . In the instant case, the learned trial judge fully realised that the evidence
against accused 2 and 3 was uncorroborated. In dealing with the evidence of Newton Saidi
he said this: 'This witness as I have earlier found is an accomplice. As such, his
evidence has to be treated with extreme caution. In particular, I warn myself of the danger
of convicting on uncorroborated evidence but remind myself that I may, after considering
his uncorroborated evidence, act on it if I am satisfied that it is sufficiently weighty and
credible.' He then went on to consider the evidence of this witness and found that it was
sufficiently weighty and credible. Clearly he has applied the test laid down in Chiu Nang
Hong's case, and there is no reason for this court to interfere on this ground."

To say that "the Judicial Committee approved that statement of the law" is correct only in
the broadest sense; it ignores what the court said to the contrary effect a few paragraphs
later, when dealing with the real issue. As a general statement it was clearly correct that a
judge was entitled in law to convict on accomplice evidence without corroboration; and as a
test of the circumstances in which such a conviction was competent one of the formulations
frequently used to express the concept that the judge must be satisfied that the risk of the
accused being falsely implicated had been excluded was "provided the judge is convinced of
the truth of the complainant's evidence". But these general statements beg the question
because they do not touch on the real issue, which is to establish in what circumstances the
judge may express himself to be so satisfied as a matter of law. In Chiu Nang Hong (13) the
appeal succeeded because it was not clear from the judgment that the trial judge had
convicted consciously in the absence of corroboration. But it would have succeeded also on
the alternative ground that the judge's reasons for being convinced of the truth of the
complainant's evidence were not clearly revealed. We have cited earlier the relevant
passage from the opinion of Lord Donovan at p. 1285, but for convenience and emphasis we
repeat portions of it here:

". . . even had this been a case where the judge had in mind the risk of convicting
without corroboration, but nevertheless decided to do so because he was convinced of the
truth of the complainant's evidence, nevertheless (their Lordships) do not think that the
conviction could have been left to stand . . . a judge, sitting alone, should . . . make it clear
that he has the risk in question in his mind but nevertheless is convinced by the evidence,
even though uncorroborated, that the case against the accused is established beyond any
reasonable doubt . . . the judge's mind upon the matter should be clearly revealed."

The significant point emerging from this passage is that simply to recite a formula
concerning the dangers of convicting on uncorroborated accomplice evidence is not enough.
Without some such reference, an appellate court could not know that "the judge had in
mind the risk of convicting without corroboration, but nevertheless decided to do so . . .";
obviously the judge could not have been silent on the point. Hence Lord Donovan in
referring to the "judge's mind upon the matter", was stressing that the judge's reasoning
should be clearly revealed; he should apply his mind to two things - the particular risks
raised by the nature and the facts of the particular case, and the reasons why in the
circumstances of that case the risks have been excluded.

The judgment of this court in Samuel Phiri (19) does not make it clear precisely on what
basis the trial judge came to his conclusion. If that conclusion was based on an examination
and evaluation of the whole of the evidence, and adequate reasons were given for deciding
that the dangers of convicting on uncorroborated evidence had been excluded, then the test
laid down in Chiu Nang Hong (13) had been applied; but if this conclusion was based simply
on the demeanour and the plausibility of the evidence of the accomplice we would have to
disapprove the decision, notwithstanding that it was a decision of this court.

The learned judge referred also to R. v Turner and Ors (20), with which we will deal more
fully below; here it is necessary only to point out that the passage cited by the learned
judge related to a submission that there had been a practice for judges not to admit the
evidence of accomplices who could still be influenced by continuing inducements, and that
this practice had been adjudged to have become a rule of law. The passage has no
relevance to the issues before the trial court, nor to the wider issues dealt with in this
judgment.

The Law Today

The Supreme Court Act, No. 41 of 1973, repealed and replaced the Court of Appeal for
Zambia Act, Cap. 52. In the main it was a re-enactment, but it effected certain substantive
amendments one of which was to repeal s. 14 (1) of the former Act and replace it by s. 15
(1) of the present Act; for our present purposes the important amendment was the deletion
of the former test "it is unreasonable or cannot be supported having regard to the evidence"
and the substitution therefore of the new test "in all the circumstances of the case it is
unsafe or unsatisfactory". This amendment followed the English Criminal Appeal Act, 1966,
later re-enacted in s. 2 (1) of the Criminal Appeal Act, 1968; it is relevant therefore to
consider how the new "unsafe or unsatisfactory" test has been construed in England.

Halsbury's Statutes, Third Edition, Vol. 8, p. 691, commenting on s. 2 (1) of the 1968 Act,
suggests that the effect of these amendments "seemed on the whole to be to clarify the law
or to improve the way in which it was stated rather than to change it materially". On the
other hand, Halsbury's Laws, Fourth Edition, Vol. 11, para. 649 note 2 observes that
"Authorities in some instances before that Act may be of doubtful value, the comparable
criteria under the Criminal Appeal Act, 1907 being . . . '. . . unreasonable or cannot be
supported . . .'. " It is now clear that the courts regard the change as material, and indeed
far-reaching; the difference between the old law and the new, and the application of the
new test, were explained by Widgery, L.J., as he then was, in R v Cooper (21) in these
terms at p. 33:

"It has been said over and over again throughout the years that this court must
recognise the advantage which a jury has in seeing and hearing the witnesses, and if all the
material was before the jury and the summing-up was impeccable, this court should not
lightly interfere. Indeed, until the passing of the Criminal Appeal Act 1966 - provisions
which are now to be found in s. 2 of the Criminal Appeal Act 1968 - it was almost unheard
of for this court to interfere in such case. However, now our powers are some what
different, and we are indeed charged to allow an appeal against conviction if we think that
the verdict of the jury should be set aside on the ground that under all the circumstances of
the case it is unsafe or unsatisfactory. That means that in cases of this kind the court must
in the end ask itself a subjective question, whether we are content to let the matter stand
as it is, or whether there is not some lurking doubt in our minds which makes us wonder
whether an injustice has been done. This is a reaction which may not be based strictly on
the evidence as such; it is a reaction which can be produced by the general feel of the case
as the court experiences it".

This approach is supported by the view expressed by the Departmental Committee on

Evidence of Identification in Criminal Cases, H.C. 26th April, 1976 (referred to hereafter as
the Devlin Report) that the "safe and satisfactory test" means that "an appeal judge - and
as an inevitable consequence a trial judge also - has to ask himself whether he thinks that
a verdict of guilty is or would be safe and satisfactory".

The modern view of the law relating to the accomplice warning is illuminating. Professor
Glanville Williams in his article on the Devlin Report in (1976) Crim. L.R. 407 at p. 409
suggests that

". . . there is a certain absurdity in the law on (the accomplice warning), as usually
stated, since the judge having warned the jury of the danger of convicting on
uncorroborated evidence has been held to be entitled to go on to tell them that they may do
so if they wish. The Committee expresses the opinion that the absurdity has disappeared as
a result of the change in the law already noticed. It says:

'The direction is based on the principle that the jury is the final judge of
whether or not the general danger applies in the particular case. Since 1966 the jury has no
longer been the final judge. The Criminal Appeal Act 1968, s. 2 . . . now requires the Court
of Appeal to allow an appeal if they think that under all the circumstances of the case the
verdict was "unsafe or unsatisfactory" ' (para. 4.28).

The Committee does not spell out its view further, but apparently the suggestion is
that, when giving a warning in the usual cases in which a corroboration warning is required,
the judge should not now tell the jury that they can disregard his warning, unless,
presumably, the judge thinks that there is evidence on which a conviction would be safe and
satisfactory."

This is in line with the construction we have placed on Baskerville (3), substituting "not
now tell the jury that they can disregard his warning" for "advise the jury to acquit".

We have suggested above that in true accomplice cases it may be difficult to envisage
circumstances where there is no corroboration of the accomplice evidence but it is
nevertheless safe and satisfactory to rely on his evidence implicating the particular accused.
Turner (20) underlines this, and is a graphic illustration also of the principle that simply to
believe the accomplice is not sufficient. Twenty-six men were charged with a number of
armed robberies. The foundation of the prosecution case against all of them was the
evidence of an accomplice, one Smalls, without which there would have been no case
except against one accused. There was no criticism of the trial judge's direction to the jury;
as the Court of Appeal said, he warned them in the clearest possible terms how dangerous it
would be to act on Smalls' evidence alone (the court described him as one of the most
dangerous and craven villains ever to have given evidence for the Crown) and of the need
for corroboration Lawton, L.J., continued:

"If the jury found him to be a credible witness, as they did, and there was
independent evidence supporting him, we can find no reason for judging that verdicts based
on his evidence are unsafe or unsatisfactory."

It was argued on behalf of an appellant whose appeal was dismissed that the trial judge "fell
into error in his direction to the jury as to corroboration in that he failed to make it clear
that the jury had to be satisfied that Smalls was a credible witness before they considered
the question whether there was . . . (corroboration) . . ." In rejecting this submission
James, L.J., said at p. 84:

"The judge did not in simple and precise terms direct the jury to approach the
question of corroboration in two stages, first, the credibility of Smalls, and secondly - and
only if Smalls was found to be credible - the existence of credible evidence, independent of
Smalls, which supported the evidence of Smalls. But he did, more than once, refer to 'being
convinced' of the truth of Smalls' evidence and he did tell the jury that, having paid heed to
his warning, they were entitled to convict on the uncorroborated evidence of Smalls on the
basis that they were convinced of its truth. The whole tenor of the summing-up was that the
jury would have to be satisfied of the truth of Smalls' evidence before they could convict
and that, even then, they ought not to convict unless they found corroborative evidence"
(our italics).

Milmo, J., at p. 86 said this:

"It was common ground not only that there was no corroboration of Smalls' evidence
against Jones but that there was nothing approaching supporting evidence of Smalls'
testimony against Jones. In a most careful summing-up of the case against Jones, the
learned judge was at pains to stress that there was no corroboration of Smalls' evidence.
Nevertheless the jury by unanimous verdict convicted Jones.

The court has come to the conclusion that in all the circumstances this conviction is
unsafe and unsatisfactory. In the series of cases with which the Court has been dealing, this
is the only instance in which the jury have convicted solely on Smalls' uncorroborated: and
unsupported evidence."

In the event the appeals of three appellants were allowed. In the case of one, hearsay
evidence had been wrongly admitted, and in the case of the second the trial judge had
wrongly directed the jury that certain evidence was capable of being corroboration. But in
the case of Jones there was no misdirection or irregularity; the jury believed Smalls and
they were fully and properly warned. Yet because of the absence of any corroboration or
supporting evidence the conviction was quashed on appeal as being unsafe and
unsatisfactory.

It is instructive to observe the direction which the modern decisions appear to be taking.
There are two threads running through those decisions and reflected also in the Devlin
Report, namely a less technical approach to what is corroboration as a matter of law, and a
recognition that identification cases are analogous to - if not virtually indistinguishable
from - corroboration cases.

Cases like Hester (11) and Kilbourne (5) illustrate the attitude towards corroboration. The
point was stressed that corroboration is not a term of art but a dictionary word bearing its
ordinary meaning i.e. "support" or "confirm" (Hester (11)) or "evidence tending to confirm
other evidence" (Kilbourne (a)). Previously hallowed rules were re-examined in those cases.
The rule against mutual corroboration was held not to be a general rule; it was held that
witnesses each of whom required corroboration could be mutually corroborative if in the
circumstances of the case the danger of a jointly fabricated story was excluded. And Lord
Reid in Kilbourne (5) commented at p. 456 on corroboration in general and the rule against
self-corroboration In particular:

"There is nothing technical in the idea of corroboration. When in the ordinary affairs
of life one is doubtful whether or not to believe a particular statement one naturally looks to
see whether it fits in with other statements or circumstances relating to the particular
matter; the better it fits in the more one is inclined to believe it. The doubted statement is
corroborated to a greater or lesser extent by the other statements or circumstances with
which it fits in . . . And the law says that a witness cannot corroborate himself In ordinary
affairs we are often influenced by the fact that the maker of the doubted statement has
consistently said the same thing ever since the event described happened. But the
justification of the legal view must I think be that generally it would be too dangerous to
take this into account and therefore it is best to have universal rule."

Lord Reid touches here on a rule which has given rise to considerable difficulty and which
may yet (apparently with Lord Reid's approval) be re-examined. Evidence of early complaint
by a prosecutrix is said not to be corroboration, but evidence of consistency; in other words
it can be used to establish her credibility, but not as corroboration. There is force in this rule
in cases of this kind because the danger of a false allegation may not be less simply
because the prosecutrix has made the same allegation from the outset. The value of
evidence of early complaint is that a complaint was made at all; the absence of such
complaint miss be weighty evidence tending to show the falsity of the allegations. But
whether it is either necessary or desirable to elevate the rule against self-corroboration into
a universal rule is open to question; there are cases where it may be entirely safe, once the
danger of fabrication has been excluded, to have regard to the earlier behaviour of,
including earlier statements by, a witness - for instance, where a description of an assailant
has been given to the police at the time of the initial report.

Kilbourne (5) illustrates also the contemporary view of identification cases. Thus Lord
Hailsham at p. 454, in the passage cited above in which he pointed out that "although the
warning must be given in every appropriate case, the dangers to be guarded against may
be quite different", concluded:

"in another case the danger may be one of honestly mistaken identity as when the
conviction of the accused depends on an identification by a single uncorroborated witness
to whom he was previously unknown."

It is clear from the Devlin Report also (para. 4.59) that the approach to identification cases
is virtually indistinguishable from the approach to corroboration cases, the only real
difference being that in the one the danger is of a mistaken identification while in the other
the danger is of deliberately false implication. It is highly significant also that the report
speaks of "exceptional circumstances" which exclude to the necessary criminal standard the
danger of mistake.

The recommendations of the Devlin Committee have recently been approved in the
important English case of R v Turnbull and Anor (22). In that case (actually three appeals
heard together) a five judge bench of the Court of Appeal sat to review the law in
identification cases. The court did not follow the report in using the phrase "exceptional
circumstances". We do not find the reasons convincing, but it is unnecessary to join in
debate which is in any event simply semantic; it is clear that the Devlin Committee in
speaking of "exceptional circumstances", and the Court of Appeal in Turnbull (22) in
speaking of "other evidence", and this court in speaking in Machobane ( 1 ) of "special and
compelling grounds", and the East African Court of Appeal in speaking in Canisio (15) and
earlier cases of "exceptional cases" and "special or exceptional circumstances" are all
expressing the same concept; at the end of the day the question is whether the suspect
evidence, be it accomplice evidence, evidence o a complainant in a sexual case, or evidence
of identification, receives such support from the other evidence or circumstances of the case
as to satisfy the trier of fact that the danger inherent in the particular case of relying on that
suspect evidence has been excluded; only then can a conviction be said to be safe and
satisfactory.

To summarise the law today in Zambia:

(1) A judge (or magistrate) sitting alone or with assessors must direct himself, and the
assessors if any, as to the dangers of convicting on the uncorroborated evidence of
accomplices with the same care as he would direct a jury, and his judgment must show that
he has done so. No particular form of words is necessary for such a direction. What is
necessary is that the judgment show that the judge has applied his mind to the particular
dangers raised by the nature and the facts of the particular case before him.

(2) The judge should then examine the evidence and consider whether in the circumstances
of the case those dangers have been excluded. The judge should set out the reasons for his
conclusions; his "mind upon the matter should be clearly revealed" (Chiu Nang Hong (13)).

(3) As a matter of law, those reasons must consist in something more than belief in the
truth of the evidence of the accomplices based simply on their demeanour and the
plausibility of their evidence - considerations which apply to any witness. If there be nothing
more, the court must acquit.

(4) The "something more" must be circumstances which, though not constituting
corroboration as a matter of strict law, yet satisfy the court that the danger that the
accused is being bluely implicated has been excluded and that it is safe to rely on the
evidence of the accomplice implicating the accused. This is what is meant by "special and
compelling grounds" as used in Machobane (1) and "special or exceptional circumstances"
as used in Canisio (15).

(5) These circumstances do not lend themselves to close description; the nature and
sufficiency of the evidence in question will depend on the nature and the facts of the
particular case. As a principle, however, the evidence will be in the nature of corroboration
in that it must of necessity support or confirm. For instance, it may fall short of being
corroboration as a matter of strict law only because of some technicality in the existing law
of corroboration; or the evidence may be of circumstances which negative any motive for
false implication. These examples are not intended to be exhaustive.

In the result, the learned judge, whose faith in the truthfulness of the accomplices was
supported by nothing save their demeanour and the plausibility of their evidence, must be
held to have misdirected himself. This conviction can therefore stand only if we can apply
the proviso.

The classic test for the application of the proviso in English law was formulated by the Court
of Criminal Appeal in R. v Lewis (23) at p.364 in these terms:

"Does there exist... corroboration of such manifest cogency that the conclusion is not
to be resisted that the jury, properly directed, would certainly have arrived at the same
conclusion?"

This test was approved in Davies (4), with the qualification that "the jury" should be read
as "a reasonable jury".

We have dealt at some length with the application of the English law to our system where
the judge sits alone or with assessors. The absence of juries is important also in this area.
The English courts have always been very reluctant to apply the proviso, largely one would
think because juries give no reasons for their verdicts. This reluctance is demonstrated by
the comments of Lord Hewart, L.J., in Lewis (23) at p. 364:

"That there was corroborative evidence here is manifest, corroboration proceeding

from the appellant himself. One might even go further, and say that there was strong
corroborative evidence . . ."

Lord Hewart then proceeded to formulate the test cited above. But perhaps an even more
startling illustration is Davies (4). In that case there was what we would have regarded as
overwhelming corroboration in the evidence of an independent witness who saw the
appellant "shake" someone, who could only have been the deceased, and who then saw the
appellant put a green-handled knife into his right-hand inside pocket. In that pocket
bloodstains were later found. There was further evidence of threats by the appellant to two
witnesses who said that if necessary they would say who was really responsible for the
deceased's death. In relation to this evidence Lord Simonds said at p. 510:

"It is manifest that this evidence would, on a proper direction of the jury, have been
abundantly sufficient to support a verdict of guilty . . ."

Yet later on the same page Lord Simonds said:

"The judge, in his summing up, dealt with Lawson's evidence and did not
warts the jury that that evidence was, or should be treated as, the evidence of an
accomplice . . .
It was not, nor could it, in my view, be argued for the Crown that, if this
(was misdirection) the conviction could, nevertheless be upheld under the proviso . . .
The evidence, if admissible, was not unimportant and the jury emerged from
their retirement to ask the learned judge some questions about it."

Presumably one of the reasons the proviso could not be applied was because it was not
known whether the jury believed the "abundantly sufficient" corroborative evidence; but the
situation would be very different if there were a finding in this regard, or if it were otherwise
clear on the record that the evidence of the witnesses in question had been accepted.

We are in no doubt that the test as to the application of the proviso is the same in Zambia
as it is in England; the corroboration or the "other evidence" must always be of such
"manifest cogency that the conclusion is not to be resisted" that a reasonable trial judge,
directing himself properly, would certainly have arrived at the same conclusion. But it seems
to us that the application of that test in England is as deeply affected by the jury system as
other aspects of the law as to corroboration, the fact that a judge or magistrate sitting alone
gives reasons for his findings or conclusions being particularly important in this area.
Suppose for example - and we have had many such cases in the subordinate courts where
this error has been made - the trial court, having warned itself of the necessity for
corroboration of the evidence of a prosecutrix in a sexual case, holds that there is strong
corroboration of the commission of the offence but fails to appreciate that corroboration is
required that it was the accused who committed it. And suppose that in his analysis and
evaluation of the evidence the trial court specifically deals with a witness whose evidence
affords clear corroboration of the evidence of the prosecutrix as to the identity of the culprit,
and expresses itself to be satisfied that the witness is telling the truth. Clearly the proviso
should be applied in such a case, since the court has made specific findings of fact on the
basis of which it must have convicted if it had not misdirected itself as to the law. Kaunda v
The People (24), a recent decision of this court, was on these lines. In that case the
evidence of the prosecutrix's mother was accepted as truthful and afforded strong
corroboration of identity; although the magistrate had misdirected himself in accepting as
such corroboration the evidence of the mother as to the prosecutrix's early complaint, this
court had no hesitation in applying the proviso. But if we had not had before us the findings
of fact of the magistrate and his reasoning we could not have been certain that without the
misdirection his conclusion might not have been different. For these reasons it would in our
view be wrong in a system where the judge or magistrate sits alone or with assessors to
apply the test relating to the proviso quite as strictly as it is applied in England. But we
stress that the test itself as formulated in Lewis (23) is unexceptionable and represents the
law in Zambia; it is the application of the test which is affected by the fact that in Zambia
we do not have juries.

We have referred to the observation of Lord Simonds in Davies (4) that "the jury" in Lewis
(23) must be read as "a reasonable jury". We agree, but with a qualification which once
again stems from our system. It Is true to say that since a jury gives no reasons and does
not indicate what findings it had made, usually one cannot say what it would have done if it
had been properly directed. But even in the case of a jury this is not entirely true; for
instance, the fact that the jury in Davies (4) returned to ask questions about the evidence
of Lawson was of sufficient significance to merit comment by the House of Lords, which
apparently drew an inference from the jury's conduct. Thus even in the case of a jury the
test cannot be entirely objective, but certainly in the case of a judge sitting alone it is not;
for the reasons we have developed above an appellate court must always move from the
findings of fact of the trial court which it was entitled to make. The "reasonable judge" test
must therefore be qualified to this extent, namely that it is not a question of what the
appellate court considers any judge behaving reasonably - i.e. not perversely, capriciously
or arbitrarily - must have concluded, but what any Judge behaving reasonably, and moving
from any findings of fact which the trial judge made and which he was entitled to make on
the evidence, together of course with the undisputed facts, must have concluded had he not
misdirected himself in the particular respect which gives rise to the debate as to the
application of the proviso. We would therefore formulate the test in this way:

Was there corroborative or supporting evidence of such weight that the conclusion is not to
be resisted that any court behaving reasonably, moving from the undisputed facts and any
findings of fact properly made by the trial court, would, directing itself properly, certainly
have arrived at the same conclusion?

It remains to examine the evidence in this case to see whether there is in fact, as the D.P.P.
submits, other evidence supporting that of the accomplices, and if so, whether this other
evidence is of such weight as to meet the foregoing test. I will state my views on these
aspects of the matter presently in separate judgment.

Judgment

SILUNGWE,C.J.: Questions of law concerning accomplice evidence and the application of the
proviso to s. 15 (1) of the Supreme Court Act have been disposed of by unanimous
decision of the court. The court is, however, divided with regard to

(a) the application of the law to the facts of this case, and
(b) whether or not the proviso can be applied by a majority of the court.

My judgment hereunder will be confined to both these matters in the order in which they
appear above.

Edward Mwale and Webster Kachabe, prosecution witnesses 6 and 7 respectively, are, as
the learned trial judge found, self confessed accomplices. They each gave a detailed account
of how the robbery was planned. During the planning stage, and at the time the robbery
was committed, both accomplices were employed by Zambia Breweries at Ndola - Edward
Mwale as shunter (presumably) and Webster Kachabe as an accounts clerk. Both will
hereinafter be referred to simply by their surnames.

With regard to the two accomplices in general, and to Mwale in particular, the planning of
the robbery started in the evening of 16th November, 1973. At about 1900 hours on that
day, Mwale was in Cairo Bar, Chifubu Township, Ndola, playing minisoccer when his friend
by the name of Jere approached him; Jere told him he wished to discuss something with
him outside. Both went outside where Jere introduced Mwale to Emmanuel Phiri and Benson
Sakala, the first and second appellants respectively. Emmanuel Phiri then asked Mwale for
information concerning the Zambia Breweries pay-roll, that is to say, when employees of
Zambia Breweries would be paid. Mwale said that he needed time before the necessary
information could be supplied. Emmanuel Phiri arranged to meet him again. When Mwale
reported on duty on the following day, he got in touch with Kachabe, also a friend of his,
and had a conversation with him relating, presumably, to the planning of the robbery.

On 22nd November at about 1600 hours, Emmanuel Phiri, Benson Sakala and Jere went to
Zambia Breweries car park and were there introduced to Kachabe by Mwale. Kachabe did
not know the visitors before. After some conversation Kachabe suggested that they should
all go to his house as he wanted to change cloths before he could attend a farewell party in
honour of a General Manager (presumably of Zambia Breweries). All of them then pry to
Kachabe's house in Kansenje Township, Ndola, using a white Ford Anglia car, Registration
No. M90, which was driven by Benson Sakala. On arrival there Benson Sakala asked
Kachabe about the Zambia Breweries pay-roll. Kachabe's answer was that salaries had
already been paid to employees of Zambia Breweries. It was pointed out, however, that
there was money from other sources, for instance, from beer takings. Benson Sakala
showed interest in the procedure used for banking beer takings, and so he inquired how
those takings were conveyed to the bank; Kachabe explained that the takings were
normally conveyed to the bank in a Securicor van. Benson Sakala asked for more
information but that could not be given at that brief meeting as Kachabe was in a hurry to
go and attend the farewell party. It was then arranged that all of them should meet again at
Border Motors on the following day. They then all boarded the Ford Anglia car and Benson
Sakala drove them to Zambia Breweries where Kachabe alighted; Mwale was offered, and
he accepted, a lift to his home in Chifubu Township. Whilst on the way home, Mwale
suggested to them that they should disguise themselves when committing the robbery, and
so he offered to give them three pairs of his old overalls - the type normally used by
employees of Zambia Breweries. The overalls were, as it will shortly be observed, fetched
on the following day.

On the following day, 23rd November, Mwale and Kachabe proceeded to Border Motors at
about 1630 hours and there found Emmanuel Phiri, Benson Sakala and Jere waiting for
them in the white Ford Anglia car. Mwale left shortly afterwards as he had to attend to his
ailing daughter; the four others remained behind. After Mwale had left, Kachabe was asked
about beer takings at Zambia Breweries. Kachabe explained the procedure and, in answer
to a question by Emmanuel Phiri, said that there was no fixed time when money was taken
in the Securicor van for banking, but that it was roughly at 0830 hours. When he had told
them this, they produced (the evidence does not say who actually produced) a sketch plan
depicting the Zambia Breweries, in particular, the accounts department. Kachabe recognised
it as having been prepared by Mwale and said that it was accurate. Both Emmanuel Phiri
and Benson Sakala expressed the view that it would be easy to deal with the Securicor van
and to handle the security guards. The conversation on that occasion and on the previous
one was in the English language. Later, at about 1930 hours on the same day, Emmanuel
Phiri asked Kachabe to escort them to Lubuto Township; Kachabe agreed. They then all
(minus Mwale, of course) went to a house in Lubuto which Kachabe was given to
understand belonged to Jere (this will hereinafter be referred to as Jere's house). At the
house Kachabe was taken to one of the bedrooms and there shown two guns - a (sub)
machine gun and pistol. Both guns were removed frown under a bed. He was told than the
guns had been used for scaring people. Emmanuel Phiri and Anderson Sakala then each
handled the guns. After Kachabe had seen the firearms he was dropped somewhere in town
and he eventually returned home.

At about 2100 hours on the same evening (of 23rd November), Emmanuel Phiri and
Anderson Sakala visited Mwale's house. Mwale gave them three pairs of overalls that he had
offered to them on the previous day; these were then put in the back of the Ford Anglia car
which was driven away by Benson Sakala in the company of Emmanuel Phiri.

On 25th November at about 2030 hours Emmanuel Phiri and Anderson Sakala visited
Kachabe at his home and asked him for K4 with which to buy petrol. Kachabe referred them
to Mwale and gave note to Benson Sakala to that effect. Benson Sakala went away
(Emmanuel Phiri apparently stayed behind). At 2130 hours that evening, Benson Sakala
arrived at Mwale's home and handed to Mwale the note from Kachabe. Mwale gave K4 (in
two K2 notes) to Benson Sakala who then returned to Kachabe's house. On arrival Benson
Sakala asked Kachabe to escort Emmanuel Phiri and himself to Jere's house. All three of
them proceeded to Lubuto travelling in the Ford Anglia car which Benson Sakala drove.
They found Jere at the house. Immediately on arrival they went to the rear of the house
and there Kachabe was introduced to Anderson Mwale, the third appellant; Anderson Mwale
was busy changing numbers on the number plates of a green Fiat 125 car "because it was a
stolen car". After the changing of the numbers had been accomplished, Kachabe asked
"then" if he could be driven to his house. Emmanuel Phiri, Benson Sakala and Anderson
Mwale took Kachabe back to his house, this time using the green Fiat car; Benson Sakala
was the driver. Kachabe understood that the green Fiat car was to be used in the robbery.
When they reached Kachabe's house Benson Sakala said that after dropping him (Kachabe)
they would pass via the Breweries to make a cutting in the wire fence so that "they could
have access to the Breweries (car) park" the next morning.

On the following day, 26th November - the day of the robbery - Kachabe came out of the
gate at Zambia Breweries so that he could buy a coke. This was at about 0900 hours. He
saw the same green Fiat car parked near the corner of the Breweries and inside it were
Emmanuel Phiri, Benson Sakala and Anderson Mwale. Benson Sakala was behind the
steering wheel. Benson Sakala waved to Kachabe; Kachabe reciprocated by waving also.

At about 1000 hours on that day 26th (November), Timothy Mukinyi, PW1, who operated
the Securicor business at Ndola, drove a Securicor transit van to Zambia Breweries
accompanied by two assistants - Martin Mulumbi and Sydney Nkhata, PW4 and PW5
respectively. Both Mulumbi and Nkhata were security guards working for Securicor. They
were allowed in through the gate so that they could fetch money in order to bank it at a
branch of the Standard Bank. At the Breweries Wilfred Banda, PW2, an assistant accountant
with Zambia Breweries, took a black cash box from the office of Tryson Ngoma, PW3, a
clerical assistant with Zambia Breweries, and handed it to Mukinyi. After sealing the cash
box Mukinyi gave it to Nkhata to carry. All the three Securicor personnel then commenced
to go outside, apparently walking in a single file; Mulumbi was in front immediately followed
by Nkhata and Mukinyi brought up the rear. At the entrance Sydney Nkhata looked to his
left and right and as he could see no one around, he started to advance towards the
Securicor van followed by his colleagues. After they had covered a short distance two men
suddenly appeared from behind and ordered Nkhata, in English, to drop the cash box. The
two men, one of whom was shorter than the other, were dressed in overalls similar to the
ones used by employees of Zambia Breweries and had nylon stockings pulled over their
faces. Mukinyi, Mulumbi and Nkhata all initially regarded this as a joke as they thought the
two men were employees of Zambia Breweries who merely pretended to frighten them.
Both men were each armed with a firearm: the shorter man had a pistol about one foot long
while the taller man had a sub-machine gun. However, when the men started firing shots
the Securicor personnel realised these were real robbers. Nkhata ran towards the Securicor
van still carrying the cash box. The man who had ordered him to drop the cash box - the
shorter man - managed to get to the van first and stood at the door. He then once again
ordered Nkhata to drop the cash box. When Nkhata struck this man with a long baton and
Mulumbi also struck him with his, the taller one opened fire. Nkhata was frightened and so
he dropped the cash box on the ground. The shorter man picked up the cash box and
carried it. Both robbers then started to move backwards where a hole had been cut in the
wire fence. They escaped with the cash box through the hole in the wire fence, entered a
parked green Fiat car which already had a driver and they sped away. The incident lasted
about three minutes. The Securicor personnel could not identify any of the robbers.

When Kachabe heard gun shots at about 1015-1045 hours he ran outside and there saw
Emmanuel Phiri and Anderson Mwale at the scene of the robbery; both appellants were
wearing overalls. Anderson Mwale was carrying the cash box. Kachabe observed one
security guard strike a person whom he believed to be Anderson Mwale, both intruders went
to a hole in the wire fence and, escaping through it, they jumped into a waiting Fiat car and
were driven away. Shortly afterwards, Mwale arrived at the scene of the robbery and found
many people there, including Kachabe.

At about 1630 hours on the day of the robbery, when Mwale and Kachabe went off duty,
they visited Jere's house but found nobody there. After waiting in vain for an hour or two,
they returned to their respective homes.
On the following day, 27th November, at about 1630 hours, Mwale and Kachabe returned to
Jere's house and on this occasion they found Jere there and had a conversation with him.

At about 1630 hours on 28th November, Mwale and Kachabe went back to Jere's house but
on finding nobody there they went away returning later at about 2000 hours when Jere was
found present. Emmanuel Phiri then arrived at the house by taxi and confirmed that the
robbery had been committed by them; Mwale asked Emmanuel Phiri why he had not been
seen earlier and reminded him of his promise to give them a share of the money stolen as a
reward for the information they had supplied to them and generally for the role they had
played in the matter.

Emmanuel Phiri simply stated that he could not say what would happen in connection with
the sharing of the money as Benson Sakala had hurt himself during the commission of the
robbery and that he had since gone to Lusaka; the sharing of the money could not take
place in the absence of Benson Sakala. They all parted company. Later that night Emmanuel
Phiri went to Kachabe's house and at his (i.e. Emmanuel Phiri's) request he was allowed to
spend the night there.

On the next morning, 29th November, Emmanuel Phiri asked Kachabe to notify Mwale about
a meeting the three of them would have at Kachabe's house around about 1630 hours on
that day. Mwale was duly notified and the meeting took place as previously arranged. As the
three of them sat in Kachabe's lounge, Emmanuel Phiri handed K200 cash to Mwale and
K250 cash to Kachabe. The remainder was to be shared when everybody concerned would
be present. It was not known how much money would be shared since the actual sum had
not been ascertained at that point in time. Mwale suggested that whatever was to be shared
should be shared equally. Nobody responded to that suggestion.

Emmanuel Phiri said he was to leave for Lusaka by train that evening in order to go and find
out what had happened to Benson Sakala and (Anderson) Mwale and Kachabe escorted
Emmanuel Phiri to the railway station at 1900 hours to catch the Lusaka bound train. When
Wale and Kachabe parted company, Kachabe went to the Savoy Hotel where he met Benson
Sakala in the bar. He asked Benson Sakala if Emmanuel Phiri who had just been escorted to
the railway station had left for Lusaka. Instead of replying to Kachabe's question Benson
Sakala asked him for some money to spend on petrol so that they could drive to Lusaka.
Kachabe gave him K10.

According to Mwale's testimony both Kachabe and himself were arrested on 11th December,
on a charge of conspiracy; but Kachabe could not remember the date of his arrest. (Ackson
Banda, PW15, who was a Detective Assistant Inspector at the time of the robbery, spoke of
10th December as being the date upon which Mwale was arrested.) However, both Mwale
and Kachabe received an indemnity so that they could give evidence for the prosecution.

In the afternoon of the day of the robbery, Inspector Mbangweta, PW10, whilst on a mission
in search of the culprits, recovered two pairs of overalls on the side of the road somewhere
between the Tudor Inn and the city of Ndola. In one pair of those overalls, he found a pair
of what appeared to be ladies gloves.

On 28th November, Sub - Inspector Chibesha, PW13, found the green Fiat car abandoned in
Chifubu Township, Ndola, and it had its ignition wires tampered with. Inside the car was
lying a black cash box containing cheques for a total sum of about K21,172.49. The witness
looked for evidence of fingerprints but did not find any. Upon the evidence of Ackson Banda,
PW15, that car belonged to a Mr Anderson from whom it had been stolen.

On 16th December, at about 0700 hours, Assistant Inspector Muyooma, PW11, who had
already received information about the robbery at Zambia Breweries in Ndola, was driving
to Matero Police Station, Lusaka, when he saw going in the opposite direction an Anglia car
Registration No. M90; the car was "greenish" in colour. The Assistant Inspector made a U
turn, followed the car and succeeded in stopping it. There were two occupants of the car,
namely, Benson Sakala and Anderson Mwale; Benson Sakala was driving it. At the request
of the Assistant Inspector, they agreed to go with him to Matero Police Station. After being
questioned Benson Sakala and Anderson Mwale were conveyed to Lusaka Central Police
Station and handed to Inspector Nyirongo who later took Benson Sakala to Ndola (at that
stage, Anderson Mwale apparently remained at the Police Station). On the same day
Inspector Muyooma visited Anderson Mwale's house in Chawama Township, Lusaka, and
from there took possession of certain suits.

On 11th December at about 1300 hours Inspector Muyooma and Detective Chief Inspector
Mabuku, PW9, went to Chunga Riverside Farm situated some 14-17 miles west of Lusaka.
The owner of the farm directed them to the house of his son where in they found Emmanuel
Phiri and one Gilbert Mutale, asleep; there were also two Zairean women in the house. Chief
Inspector Mabuku searched Emmanuel Phiri's clothes and found K5.13 in cash. In Gilbert
Mutale's clothes was found K70.50. A brief-case belonging to Emmanuel Phiri was then
opened and found to contain a sum of K1,200 in K10 notes and K4.16 in silver (and
copper). In the wardrobe was found a pistol and seven rounds of ammunition. Emmanuel
Phiri spoke English. He was apprehended and later taken to Ndola Police Station.

On 11th December, as a result of information received from Mwale, PW15 placed a guard at
Jere's house (No. 2715, Lubuto) which was deserted, expecting to apprehend Jere upon his
return. That house remained deserted, but on 13th December it was forced open and inside
it a machine gun was found under a settee, tied to it; the machine gun was taken to the
police station.

Detective Chief Inspector Chisha, PW8, is a ballistic expert in the Forensic Department at
the Police Force Headquarters. On 18th December, he received and examined a pistol and a
sub-machine gun plus one silent cartridge and a live one, both cartridges having been
recovered (through Mutiny, PW1) at the scene of the robbery; he further received (from the
police) and examined seven rounds of ammunition (recovered from the farmhouse west of
Lusaka). Examination of the inside of the barrel of the pistol revealed that there was a lot of
rust which he attributed to lack of care or the pistol having been buried or discarded for
some time. The slide could not move fast when pulled back and could only be pulled very
hard when loading it. In that condition the pistol could not go off in the hands of an amateur
because normal loading would not make it fire. The witness came to the conclusion that the
spent cartridge could not have been fired from the pistol; further, he found that none of the
seven rounds of ammunition could be fired from either the pistol or the sub-machine gun.
However, he found that the spent cartridge and the live one (both of which were recovered
at the scene of the crime) could have been and could be fired, respectively, from the
sub-machine gun.

Emmanuel Phiri, Benson Sakala and Anderson Mwale all gave evidence on oath but called no
witnesses. At all material times, they each resided, so they said, at their respective
addresses given in evidence. The following is a summary of their evidence:
Emmanuel Phiri:
 A salesman by occupation, this appellant gave his residential address as House No.
3962 Matero. His testimony was that on 12th December, he was at Chungu Riverside Farm
visiting his friend, Kope Njovu, the son of the owner of the farm. He had gone to the farm
on the previous day and had decided to spend the night there as he had no transport. He
had previously visited the farm for the purpose of buying chickens.

Between 1200 hours and 1300 hours on the 12th, the police entered Kope Njovu's
room and found therein the appellant asleep; he was "resting". There were many people in
the room including Gilbert Mutale and two Zairean women. In his brief-case the police found
K1,204.16 in cash. According to him, he had acquired that sum through chicken sales, a
part-time business that he had been carrying on for a period of three months. He was a
full-time salesman working for a shop known as "Limited" where he sold such things as
suits, shoes and cuff-links. In his full-time job he earned K190 per month. The shop
belonged to a "Mr Brown". At the time of giving evidence the shop had since been closed
down and was then under a new management.

This appellant denied in evidence ever having seen the police find a pistol in the
wardrobe of Kope Njovu's room, as alleged; he never saw it. He denied any knowledge of
the robbery or of the green Fiat car and said that accomplices Mwale and Kachabe had
never met him at all - he did not know them. He knew nothing about Jere. Emmanuel Phiri
knew the second appellant before when both were at school - himself at Kabulonga
Secondary School and the second appellant at Libala Secondary School - but he had no prior
knowledge of the third appellant since he had not met him before.

Benson Sakala:
He said he was a motor mechanic by occupation and gave his residential address as
Community Flats No. P.10, Room 35, Kafue Estates. He was arrested on 6th December
whilst driving from Kafue. He was at the time with Anderson Mwale, whom he had just met
(and given a lift).

This appellant could not remember where he was on 26th November, but thought he
must have been in Lusaka. He denied ever being in Ndola at all during 1973, adding that he
had last visited Ndola in June or July of 1972 to attend the trade fare. He denied having
driven the green Fiat car and said he had no prior knowledge of accomplices Mwale and
Kachabe. He testified that he knew the first appellant during their school clays when he was
himself at Libala (Secondary) School, and the first appellant at Kabulonga (Secondary)
School; at school both played football and travelled in the same bus. He used to see the
third appellant selling fish and chips in a fish and chips shop in Lusaka. He could not say
how long he had known him beyond stating that he knew him prior to November 1973. He
denied having taken part in the robbery.

Anderson Mwale:
He gave his residential address as House No. A181 Chawama Compound, Lusaka,
and said he was a musician by occupation. His testimony was that he had never visited
Ndola prior to his being taken there in connection with this case. He was taken to Ndola on
10th December having been arrested in Matero on 6th December. On the occasion of his
arrest he was travelling to Lilanda in the company of the second appellant who had given
him a lift. He came to know the second appellant as a customer when he was himself selling
chips at Kennedy Fish and Chips shop. He had known the second appellant since 1971. This
appellant testified that he had never met Kachabe before the case arose and that he had
had nothing to do with the changing of numbers on the plates of the green Fiat car. He did
not know Jere.
 According to Anderson Mwale, on 26th November, he was in Lusaka but could not
recollect what he was doing on that day.

The fact that the robbery was committed at Zambia Breweries, Ndola, on 26th November,
1973, is incontrovertible. What appears to be in dispute is the identity of the culprits. The
prosecution evidence points to the three appellants as the real culprits. The defence, on the
other hand, contends that the three appellants are innocent and that the real culprits are
still at large. To a great extent the corpus of the evidence against the appellants comes
from the mouths of the self-confessed accomplices - Mwale and Kachabe. In my opinion,
however, there are a number of odd coincidences which tend to connect the three
appellants with the commission of the offence and which in themselves constitute "other
evidence" (Turnbull (22)) or evidence of "something more" that "support(s)" or "confirm(s)"
(Hester (11)) other evidence or which amounts to "evidence tending to confirm other
evidence" (Kilbourne (5)). Because of the nature of such evidence, it need not necessarily
come from an independent source; t may, for instance, come from the accomplice himself.
The coincidences referred to above will now be examined.

Upon the prosecution evidence, Mwale, PW6, offered and in fact supplied two pairs of his
overalls to Emmanuel Phiri and Benson Sakala, first and second appellants respectively, so
as to facilitate their disguise on the occasion of the robbery since those overalls were the
type normally used by employees of Zambia Breweries at Ndola. Kachabe, PW7, and the
three Securicor personnel witnesses - Mukinyi, Mulumbi and Nkhata, all of whom witnessed
the robbery - said in evidence that the two robbers who physically succeeded in taking away
the cash box to a nearby getaway car wore overalls. Indeed, when the Securicor personnel
witnesses were first confronted by the two robbers, they did not take them seriously - they
thought it was all a joke because they considered them to be employees of Zambia
Breweries who were merely trying to frighten them. It Was not until shots were fired that
the Securicor personnel witnesses appreciated the dangerous reality of the situation.
Kachabe whose testimony, in part, was that he had seen, about an hour prior to the
commission of the crime, all the three appellants near the scene of the crime, said in
evidence that those who physically obtained the cash box during the robbery were
Emmanuel Phiri and Anderson Mwale, the first and third appellants respectively. According
to Kachabe, when he saw the trio just before the robbery took place, Benson Sakala waved
to him; he reciprocated by waving back. Kachabe, as well as the Securicor personnel
witnesses, all spoke of the two robbers having what appeared like ladies' stockings pulled
over their faces.

Some time after 2030 hours on the eve of the robbery, when Kachabe was in the corn Any
of the three appellants, Anderson Mwale announced that after dropping Kachabe at his
home they would pass via the Breweries in order to make a cutting in the wire fence so that
"they could have access to the Breweries (car) park" the next morning - 26th November.
Kachabe's testimony was that during the robbery on the 26th he sane: Emmanuel Phiri and
Anderson Mwale escape with the cash box through a hole in the wile fence. Mukinyi,
Mulumbi and Nkhata also observed two of the robbers escape through the hole in the wire
fence.

Again, on the eve of the robbery, Kachabe was introduced, at Jere's house, to Anderson
Mwale, who was at; the time busy changing numbers on the number plates of a green Fiat
125 car. When the changing of numbers had been accomplished, Benson Sakala drove
Kachabe to his home using that very car. Emmanuel Phiri and Anderson Mwale also
travelled in the car on that occasion with Benson Sakala. Upon the day of the robbery,
about an hour before the crime was committed, Kachabe saw all the appellants in the same
green Fiat 125 car near the scene where the robbery was soon to occur; Benson Sakala was
behind the steering wheel. When the robbery was committed not only did Kachabe see the
two robbers jump into the waiting getaway green Fiat car but also did the Securicor
personnel witnesses.

Kachabe was told at Jere's house that the Fiat car had been stolen.

PW15, Ackson Banda, testified that the green Fiat car, which was found abandoned after the
robbery with the ignition wires hanging loose and which contained the black cash box, had
been stolen from a Mr Anderson.

On a number of occasions during the planning stage, both Mwale and Kachabe were driven
by Benson Sakala in the white Ford Anglia car Registration No. M90; Emmanuel Phiri was
also present in the car on those occasions. Ten days after the robbery, Assistant Inspector
Muyooma intercepted in Lusaka "greenish" "Ford Anglia car Registration No. M90" being
driven by Benson Sakala in the company, as a passenger, of Anderson Mwale. The similarity
in the make of the car and the registration number of the Ford Anglia car which Benson
Sakala and Emmanuel Phiri had allegedly been using in Ndola, is not only significant but
also remarkable coincidence. The only difference appears to be in the colour. It is likely that
the colour of the vehicle could have been changed during the intervening period. On this
aspect, there are two points in favour of the car being one and the same vehicle as against
one point, namely, the colour. The two points are, first, the make of the car - Ford Anglia -
and, second the registration number, namely, M90. It seems probable that the Ford Anglia
car was one and the same vehicle referred to by the three witnesses.

On 23rd November, some three days before the robbery occurred, Emmanuel Phiri and
Benson Sakala took Kachabe to the bedroom in Jere's house wherein he saw two guns - a
(sub) machine gun and a pistol. A sub-machine gun and a pistol were used during the
robbery; that is confirmed by the evidence of Kachabe and of the Securicor personnel
witnesses. After the robbery, Jere's house was forced open and inside it sub-machine gun
was found under a settee, tied to it. A pistol was recovered from the wardrobe in the room
in which Emmanuel Phiri was found at Chunga Riverside Farm, west of Lusaka. However,
when the ballistic expert examined both these firearms, he came to the conclusion that the
spent cartridge and the live one found at the scene of the robbery could have been, and
could, respectively, be fired from the sub-machine gun but that the pistol could not have
been used. However, he found that none of the rounds of ammunition recovered from the
Chunga Riverside Farm could be fired from either the sub-machine gun or the pistol.

The learned Director of Legal Aid submitted that the learned trial judge failed to direct
himself properly on the issue of fingerprints in that the police officer who had looked for
fingerprints on the car without finding any was not qualified to do so on the ground that he
was not himself a fingerprint expert. No fingerprints were looked for on the firearms. Mr
Osakwe argued that had a fingerprint expert been called to and in fact examined the car,
the cash box and the firearms, he might have found finger impressions of the real culprits.
That this was not done, the argument went on, must be considered in favour of the
appellants.

PW13, Detective Sub - Inspector Chibesha, who recovered the abandoned green Fiat car,
testified that he had looked for fingerprints on both the outside and the inside of the car but
had found none. He found the black cash box lying inside the car but on examination of it he
did not notice any finger impressions thereon. In cross-examination this witness said that
there was at the time, in Ndola, fingerprint expert but added that when he looked for
finger-prints and found none, he felt there was no need to bring in the fingerprint expert. It
is common practice on the part of the police, for police officers who are not themselves
experts in finger impressons to look for evidence of fingerprints on relevant material
objects and, if found, to lift them so that they can be examined by an

1978 ZR p120
BARON, D.C.J.

expert in finger impressions. It is common knowledge that fingerprint experts in the

Republic are few and far between and as such it would be impracticable for them to
physically examine every scene of crime or wherever are to be found the relevant material
objects suspected to have finger impressions left over as a result of the commission of a
crime.

There is nothing in the evidence to affirm a view that Detective Assistant Inspector
Chibesha was guilty of dereliction of duty. I hold, therefore, that there was no misdirection
on this matter in relation to the Fiat car and the cash box. Apparently, however, fingerprints
were not looked for on the sub-machine gun and the pistol; the police should have looked
for them. In any event, when giving consideration, in this case, to the evidence of
fingerprints or lack of them, regard must be had to the evidence of Inspector Mbangweta
who spoke of the recovery of two pairs of overalls in the pocket of one of which was found
what appeared to be ladies' gloves. That evidence, for what it is worth, tends to suggest
that gloves were used at some stage during the robbery and if this be true, then no finger
impressions could have been left on the relevant material objects. In the circumstances, I
am unable to assume that had the relevant material objects been examined by a fingerprint
expert something favourable to the appellants might have been found.

A further coincidence lies in the discovery of K1,204.16 cash in Emmanuel Phiri's brief-case
(which discovery is common ground) about which Emmanuel Phiri did not give a credible
explanation. If his explanation that he had acquired that money through his salaried
employment and chicken sales (over a period of three months) be true (which I think it is
not), why did he think it necessary to carry about that large sum of money, especially in the
days when robberies and thefts are not uncommon. His own evidence suggests that that
money was acquired over a period of time. If this be so, why was it not kept in some safe
place? Why did he take that money with him on the occasion of his visit to the Chunga
Riverside Farm? Was that money not part of the total cash involved in the robbery at
Ndola's Zambia Breweries? This was certainly an odd coincidence that so shortly after the
robbery at Ndola in which Emmanuel Phiri was implicated as one of the main architects, he
should be found in possession of such a large sum of money at a place which, for the
purpose of this case, could be regarded as a hideout. Further, Emmanuel Phiri's explanation
that he had worked as a salesman for a shop called simply as "Limited" and owned by a "Mr
Brown" sound spurious to me - I do not consider that that could reasonably be true. It is
highly improbable that the shop, if it did exist at all, could have been known simply as
"Limited".

Further still, it seems to me an odd coincidence that the accomplices who, at all material
times, resided in Ndola could pick on three strangers two of whom ordinarily resided in
Lusaka and the other at Kafue near Lusaka, and who knew one another (with the apparent
exception of Emmanuel Phiri and Anderson Mwale). Indeed, at the time of their interception
in Lusaka, Benson Sakala and Anderson Mwale were in each other's company. All three
appellants were apprehended in Lusaka.

1978 ZR p121
BARON, D.C.J.

Benson Sakala contended in evidence that he had not been to Ndola at all during 1973 and
that he had last visited the city in June or July of 1972 for the purpose of attending the
Trade Fair. Anderson Mwale said he had never been to Ndola at all. All three appellants
denied any prior knowledge of the accomplices or having committed the robbery as alleged.
But they were disbelieved by the learned trial judge.

It was submitted on behalf of the appellants by the learned Director of Legal Aid that
accomplices Mwale and Kachabe must have supplied information to the police leading to the
arrest of all the appellants. There is, however, not a particle of evidence on record to that
effect. On the available evidence, it appears that the police obtained information about the
appellants from sources other than the accomplices since the accomplices seem to have
been apprehended after or at about the same time as the appellants were rounded up.

Some cases, including those that involve accomplice evidence, do attract an element of
speculation. Speculation, in this context, is a process of reasoning which must of necessity
be limited by the circumstances of each case. The test, in my view, is whether there is
anything in any given case that gives room for acceptable speculation. If there is no such
thing, as I consider to be the position in the present case, then acceptable speculation does
not arise. If speculation were not to be limited by the circumstances of each case, it might
assume absurd proportions.

To give an extreme illustration, an old axiomatic and trite saying runs thus: to err is human.
It is indeed common ground that every human being is capable of committing an error since
no human being is infallible. However, it would be untenable for one to argue, in the
absence of a sound and adequate reason, that an independent witness who otherwise
appears credible should be disbelieved because, being a human being and therefore capable
of erring, he might have erred! Such a state of affairs would not only be intolerable but also
absurd since no human being would ever be held to be telling the truth. In such a situation
what is crucial is whether an independent witness has told the truth or falsehood in any
given case. It is obviously to be appreciated that, accomplices apart, even the most
independent of witnesses, including relatives and friends of an accused person, are capable
of telling falsehoods on the ground of undisclosed motives or pathological inclinations which
may not be apparent on the record of a case. As I have already stated the test is whether or
not room exists for acceptable speculation.

In the circumstances of this case I can see no room for acceptable speculation. I do not
consider that there has been concoction or an attempt to conceal the identity of the real
culprits. There is not an iota of evidence that even remotely suggests that the real culprits
are being shielded. On the evidence of the accomplices the three appellants know or ought
to know what has happened to the proceeds of the robbery. The only other person that has
been linked with the robbery is one Jere who seems to have disappeared from the face of
the earth. There does not seem to be any apparent motive for the accomplices concocting
evidence against the appellants; the accomplices did not even attempt to extricate
themselves

1978 ZR p122
BARON, D.C.J.

but rather they painted a picture of their own involvement as well as that of the appellants
and Jere. Both accomplices said in evidence that it was Benson Sakala who drove the Ford
Anglia car during the planning stage of the robbery. One wonders why it was that they did
not say it was Emmanuel Phiri, Anderson Mwale or Jere that was the driver of that car;
Kachabe testified that Benson Sakala drove the green Fiat 125 car; it is remarkable that he
did not implicate any of the other two appellants or Jere. Mwale spoke in evidence of having
offered his two pairs of overalls to Emmanuel Phiri and Benson Sakala who accepted the
offer and collected the overalls. It is surprising why either the third appellant or Jere or both
were not implicated in this. Kachabe testified that Benson Sakala said they would cut a hole
in the wire fence so that they could gain access to the Breweries car park the next morning.
It is surprising why Emmanuel Phiri, Anderson Mwale or Jere were not implicated in this.
The Securicor personnel all referred to one of the two robbers who confronted them as
being shorter than the other. It was the shorter man that took away the cash box while the
taller one opened fire. Kachabe testified that it was Anderson Mwale who took away the
cash box; Kachabe picked on Anderson Mwale but not on any of the other two appellants! At
the request of Emmanuel Phiri a meeting attended by Emmanuel Phiri himself, Kachabe and
Mwale took place in Kachabe's lounge during the afternoon of 29th November at which
Emmanuel Phiri gave K200 to Mwale and K250 to Kachabe; why was Emmanuel Phiri
implicated in this but not any of the other two appellants? There are other similar
illustrations that one can give in this case. Even if it were to be assumed that there has
been concealment of the proceeds of the robbery by a person other than any of the
appellants, this would not by itself exonerate the appellants for at least one of them knows,
or ought to know, the whereabouts of those proceeds; the fat of their involvement would
not be watered down thereby. The question of threats, reward, or any other thing designed
to conceal the identity of the real culprits does not arise in this case there being no
foundation for the same. Consequently, the danger of falsely implicating the appellants has
been eliminated.

In the aggravated robbery case of Musinga Jean Pierre v The People (25) Baron, D.C.J.,
delivering the judgment of this court said:

"The other item of evidence of some significance was that in the appellant's room a
revolver was found hidden in a bag of mealie meal. It must be said at once that there was
no evidence to show that the revolver was one of the firearms carried by the assailants on
the night of the robbery, but its concealment and its possession when added to the other
evidence to which we have referred represents an additional piece of evidence which a court
is entitled to take into account. It must be stressed, however, that standing alone the
finding of the firearm would not have been sufficient to connect the appellant with the
offence."

In that case, the concealment (and possession) of the revolver in the bag of mealie-meal
within the appellant's room was, although not specifically

1978 ZR p123
BARON, D.C.J.

spelt out as such, an odd coincidence which, in the circumstances of the case, represented
"an additional piece of evidence which a court is entitled to take into account", although
"standing alone the finding of the firearm would not have been sufficient to connect the
appellant with the offence".

In the case now under consideration, there are many odd coincidences to which reference
has already been made. Those coincidences do, in my view, constitute evidence of
"something more"; they represent "an additional piece of evidence" which this count is
entitled to take into account; they provide a support for the testimony of the accomplices.
In my considered opinion, therefore, there can be no doubt that the three appellants are the
real culprits who perpetrated the robbery at the Ndola Breweries on 26th November, 1973.
It is obvious that where the learned trial judge decided this case, his approach towards
corroboration was one of strict law; he unsuccessfully looked for it from an independent
source. Then, without looking for evidence of "something more", he relied upon his faith in
the truth of the evidence of the accomplices and on that basis convicted all the three
appellants as charged. This was a misdirection. However, had he adopted a less technical
approach as to what constitutes corroboration, that is to say, had he looked for "other
evidence" or evidence of "something more" that "support(ed)" or "confirm(ed )" the
evidence of the accomplices, or which amounted to "evidence tending to confirm other
evidence", he must inevitably have found it to exist and that consequently it was safe to
convict. In the circumstances I would apply the proviso and dismiss all these appeals.

This now brings me to a consideration of the second issue referred to at the beginning of
this judgment, namely, whether or not the proviso can be applied by a majority of the
court. For reasons that will be advanced in a moment, let it be said at once that in my
humble opinion, the majority view prevails. It is common ground that where, on appeal to a
court comprising more than at least two judges, say three, five, etc., the appellate court is
divided on a point of law or fact or both, the majority view ought, to prevail. This being the
position is there any cogent and adequate reason that exists in aid of a concept that with
regard to the application of the proviso only a different approach should be adopted, namely
that the minority view ought to prevail? I can see none. Not even the absence of precedents
in this or any other Commonwealth or common law country would constitute a sufficient
support for the minority view concept. The proviso is there for the purpose of promoting the
interests of justice. Indeed the test we have just formulated for the application of the
proviso speaks of "any court behaving reasonably . . ." not of "any judge behaving
reasonably . . .". And so the focal point here is the court. Where an appellate court consists
of one judge no problem arises for obvious reasons. But where it consists of three, five, etc.
judges, those judges, being human beings, do at times differ on some points of law, of fact
or of mixed law and fact. This is a healthy thing which, I think, augers well for the
development of the law because as days pass by one point of view or the other would
emerge or be confirmed (as the case may be) as the correct

1978 ZR p124
BARON, D.C.J.

one. In the absence of any enactment or legal rule to the contrary, it is my opinion that the
proviso can be applied by a majority of an appellate court. I can see no conflict between the
concept of the majority view and the test for the application of the proviso as the two are
complementary. Assuming the concept of the minority view were to succeed this might give
rise to an absurd situation if one judge, out of say a bench of five, were to hold a minority
view. In those circumstances rigid adherence to what one might conveniently term a
"unanimity rule" would produce a situation whereby the minority view of a single judge
prevails over the majority view of four judges. That, in my view, can hardly be regarded as
a step towards the promotion of the interests of justice.

As I have sought to demonstrate, it is my considered opinion that the proviso can be applied
by the majority. It therefore goes without saying that if the majority of the court in this case
is of the same view as mine the proviso ought to be applied.
Judgment

BARON, D.C.J.: The two accomplices were both employed by Zambia Breweries. They both
told the court that four days before the robbery they were introduced by a man named Jere
to the first and second appellants, whom they had never met before. They were asked for,
and gave, information about Zambia Breweries' payrolls and beer takings and they both told
the court that they drove to the house of PW7 in a car. PW6 described it as a white Anglia
Registration Number M90 while PW7 merely described it as a white car whose make he did
not remember. The two witnesses told the court that they had further meetings with the
appellants and Jere before the robbery, and PW7 said that at one of them he was shown a
sub-machine gun and pistol. PW6 said that they were promised something for giving
information but that no amount was mentioned, but PW7 said that he simply gave the
information without being promised, or expecting, any payment.

On the day of the robbery both the accomplices were at their place of work when they heard
the sound of shots. PW7 said that he rushed out of the building and saw appellants numbers
1 and 3; he said they were wearing overalls and that he recognised them, but when
questioned closely he admitted that he did not see their faces. He was not aware that the
robbers were wearing women's stockings over their faces. He was cross-examined on the
basis that in the magistrate's court he had said:

"at about 1050 hours I heard gun shots outside the Breweries . . . I heard people
screaming that money had been stolen, I then went outside and I saw three people driving
away with a pistol. Then afterwards everything was quiet. Edward came and told me that
the boys have done it."

At the trial on the other hand PW7 gave very much more detailed evidence; he stated that
he saw the appellants before they escaped through a hole in the fence and described how
one of the security guards struck a man whom he believed to be the third appellant with his
baton.

Mr Osakwe, the learned Director of Legal Aid, submitted that both these witnesses, but in
particular PW7, gave contradictory and unsatisfactory evidence and should not have been
believed. On the face of the

1978 ZR p125
BARON, D.C.J.

record I do not think this submission can be upheld in relation to PW6. But I entirely agree
that PW7 was evasive and obviously untruthful as regards his own involvement in the
robbery; and on the vital issue of the identity of the robbers, and even putting the most
favourable construction possible on his evidence in the magistrate's court that he saw "three
people driving away with a pistol" - i.e. he saw at least one of them before he got into the
car - it is in my view impossible to reconcile the evidence given by this witness in the lower
court with his evidence in the High Court. PW6, who equally heard the shots, had not been
in time to see the robbers, and it is significant that PW7 says that his co-accomplice told
him that the boys have done it"; if PW7's evidence in the High Court were true, and
particularly as to having recognised the appellants, one would have expected the
conversation with PW6 to have been very different.

After the robbery the two accomplices met two of the appellants and Jere on more than one
occasion; PW6 was given two hundred kwacha and PW7 two hundred and fifty kwacha.
From this and the remainder of their evidence It is clear that PW6 and PW7 were deeply
involved in this robbery as accessories both before and after the event, and indeed their
confessed involvement fully justified the allegation put to them in cross-examination that
they planned and masterminded the crime. They fall squarely within the category of persons
whom we have described as true accomplices; although they did not physically take part in
the final execution of the robbery, on the facts of this case they would have as much
interest in concealing the identity of the true culprits as the men who did.

There is evidence that the three appellants were arrested on the 6th December while the
accomplices were apprehended on the 11th and about the 14th December respectively.
There is further evidence that one of them at least had been questioned and released before
being arrested and charged, apparently with conspiracy, but there is no reliable evidence as
to when he was first questioned.

The car which was used in the robbery was found abandoned two days later. It was
examined by a detective sub-inspector who found a black cash box, some cheques and a
pair of white gloves. The significance of his evidence relates to the question of fingerprints.
He said that he examined both the outside and the inside of the car including the number
plates for fingerprints and also the cash box and the cheques, and he found none. The
following are the verbatim questions and answers in cross-examination on the point:

Q: How many years training did you receive as a fingerprint expert?

A: I am not a fingerprint expert.
Q: Do you have an expert in Ndola?
A: We have got some, my Lord.
Q: Did you ask anybody to check this vehicle?
A: I checked and noticed that there were no fingerprints and I realised there was
no need to bring an expert, my Lord.

1978 ZR p126
BARON, D.C.J.

I think we would be failing in our duty both to the public and the police themselves if we
were to refrain from criticising this attitude of an experienced police officer in the CID. The
eye-witness evidence stated affirmatively that the hands of the two robbers who effected
the robbery, in broad daylight, were black. Cross-examination was directed on the point and
it is clear that there was no suggestion that either of the robbers was wearing gloves. This
was patently a case where, as we said in Banda v The People (26), it was a dereliction of
duty on the part of the police not to obtain proper evidence as to the presence or otherwise
of fingerprints on the car. It is true that the evidence of the sub-inspector is silent as to
whether he "dusted" the car and the cash box, but it is in my view inconceivable that, had
he done so, he would not have said so, particularly in cross-examination. Certainly a court
could not assume that he did. If a fingerprint expert or a detective trained in the art of
detecting and "lifting" fingerprints had examined the cash box and the car he could have
told the court one of two things: either that he had found fingerprints, or alternatively that
the box and the car had been wiped clean. The latter alternative would have been neutral so
far as the appellants are concerned, but the former, if the prints found had been sufficiently
clear to enable comparisons to be made, might have been conclusive against them, or on
the other hand given rise to the kind of presumption in their favour which we discussed in
Banda (26). It is impossible for the articles we are considering (and in particular the cash
box, which had been forcibly opened) to be handled by people not wearing gloves, or in
some other way preventing contact between their fingers and the surface, without leaving
prints; hence for a court to accept the evidence of the detective sub-inspector that there
were no fingerprints on either the car or the cash box involves an assumption that all such
prints had been wiped off. This is an assumption which a court cannot make, because such
a state of affairs would have been apparent to an expert or any police officer trained to
detect fingerprints, and crucial evidence of this kind should have been given to the court.

An even more unsatisfactory aspect of the case relates to the finding of a sub-machine gun
in a house said to be occupied by a Mr Jere, who was named by the accomplices as having
been a central figure in the planning of the robbery and also the subsequent events. The
ballistics expert stated positively that the pistol found in the room in which the first
appellant was apprehended could not have been the pistol used in the robbery; on the other
hand he gave it as his positive and firm opinion that the sub machine gun had fired the
empty cartridge case which had been found at the scene. Why the learned trial judge was
not prepared to go further than to hold that this cartridge could have been fired from the
exhibit before the court is not clear; but it seems that he was not prepared to hold that
either of the firearms exhibited had actually been used in the robbery because of the
conduct of the police, of which he was highly critical. He drew attention to the direct conflict
between PW15, a former detective Asst. Inspector who said that he had received
information from PW6 (one of the accomplices) about the house in which the sub-machine
gun was alleged to have been found, and the evidence of PW6 himself who denied

1978 ZR p127
BARON, D.C.J.

that he had given any such information. The learned judge then examined in detail the
evidence of the detective Assistant Inspector who said that on the 11th December he had
placed a police guard at that house but called it off after two days and then went to seek
the assistance of three council employees to remove the contents of that house, in the
process of which they found the sub-machine gun tied under a settee. The learned trial
judge obviously believed PW6 and not the police officer on this issue because he said:

"One may now ask how did (the Asst. Inspector) know about House 2715 Lubuto?
The only inference I can draw is that there were other sources of information other than
Edward Mwale which source the prosecution has decided not to bring in the open to test
their truthfulness."

The learned judge examined also other aspects of the finding of this sub-machine gun. He
commented on the fact that none of the City Council employees nor any of the four police
officers alleged to have been present when the search was made was called to give
evidence. He commented most critically on the failure to obtain a search warrant
notwithstanding that there was period of two days before which the house was forcibly
entered and he concluded:

"To sum up: the fact that Edward Mwale did not tell Ackson Panda about House No.
2715, Lubuto; the fact that he was neither led by Edward Mwale or Kachabe to that house;
the fact that none of the City Council employees or any of the four police officers present
when the machine gun is alleged to have been discovered was or were called to give
evidence; the fact that all these three accused persons were not present when the discovery
of the gun was made despite the fact that they were in Ackson Banda's custody at Ndola
Central Police station; and the fact that no search warrant was obtained when there was
ample time to obtain one would make one to come to an irresistible conclusion that this
machine gun was merely planted in that house of a fictitious Mr Jere by the police."
This finding is conclusive in itself, because if the man named by the accomplices as playing
a central role in the affair is held to be fictitious it follows that the accomplices are not
worthy of credit as to the identities of other alleged participants. But the matter goes
further; the conduct of the police suggests an attempt to give credibility to the story of the
accomplices.

I think the learned trial judge was entirely justified in being highly suspicious as to the
circumstances in which the police came to learn of House No. 2715 Lubuto; he was quite
satisfied, and I am equally satisfied, that there must have been other people who were
either involved in the robbery or who at least knew about it in addition to the accomplices
and the "fictitious" Mr Jere. This suspicion is heightened by the fact that the former Asst.
Inspector admitted in cross-examination that no attempt was made to test the sub-machine
gun for fingerprints; everything I have said in relation to the motor car and cash box applies
with added force here.

1978 ZR p128
BARON, D.C.J.

The learned Director of Public Prosecutions urged three aspects of the evidence as providing
support for the evidence of the accomplices. First, he submitted that, the appellants all
having been apprehended some days before the accomplices, it could not have been the
accomplices who gave information to the police concerning the appellants; hence, the
argument runs, it cannot be said that the accomplices are concealing the identities of the
real culprits. This by no means follows; and there are two other major flaws in the
argument. As I have said, there is evidence that the police questioned at least one of the
accomplices before the date on which he was arrested and charged. Furthermore, even if
the persons who gave the relevant information to the police concerning the appellants were
persons other than the accomplices the informants could well have been associates of the
accomplices, and indeed were likely to have been. I am, of course, entering the realm of
undesirable speculation; but the Director's submission is asking us to do precisely that, and
it is out of the question for the court to make speculative assumptions adverse to the
appellants.

Secondly, the Director pointed out that the car whose registration number was M90 was
stopped by the police in Lusaka with the second and third appellants in it, and he submitted
that, this event having happened several days before the accomplices were apprehended,
once again the information given to the police must have come from other sources. The
argument here is on precisely the same lines as on the previous point and everything I have
said in relation thereto applies equally here. It is significant also that the learned judge, as
appears from the passage cited above, was equally unhappy about these shadowy
informants.

There is suspicion also concerning the truth of the evidence of the accomplices when they
say they saw the car in question, because they both spoke of white car whereas PW11, an
assistant inspector of police, described it as greenish in colour; this discrepancy alone
makes it a real possibility that they had been given the number by someone else and had
never personally seen the car, and it is pertinent to wonder why PW6, who rode in the car
only twice, should have noted the registration number. This discrepancy cannot be
dismissed on the basis that the colour of the car is likely to have been changed - an
unwarranted assumption adverse to the appellants for which there is no basis in the
evidence.
I do not regard the foregoing aspects of the evidence as providing any support for the
evidence of the accomplices. It is evidence with which, if they were falsely implicating the
appellants in order to protect the true culprits, they or their associates would be careful to
acquaint themselves. Such evidence in no way excludes the danger of false implication.

Thirdly, the Director referred to the evidence of PW4 and PW5, both security guards
employed by Zambia Breweries, who said that the two assailants were a tall man and a
short man, and PW5 said he struck the latter on the shoulder with his baton. If there were
evidence that the

1978 ZR p129
BARON, D.C.J.

two appellants in question could fairly be described as tall man and short man (a matter to
which I will return in a moment) this argument is in principle valid. If an accomplice
implicates two men who answer the descriptions of the culprits given by independent
witnesses, certainly the evidence of those witnesses tends to support the evidence of the
accomplice as to the identity of the culprits and is therefore capable of being corroboration;
of course, whether this corroborative evidence is sufficient to exclude the danger of false
implication is a question of weight and will turn principally on whether the descriptions are
sufficiently distinctive for the court to be able to say that for the accomplices to be falsely
implicating pair of men who answer the descriptions given by two independent witnesses,
with whom there was no question of the accomplices having conspired to concoct a story,
would be too fanciful a coincidence. But in fact a reading of the evidence of the two security
guards show that the references to a tall man and a short man, far from being distinctive
descriptions, are intended simply to differentiate between the two; there are references to a
"shorter man", and at the only place where the matter was pursued to any degree PW5, in
response to the question "And in relation to the other man, was he bigger or smaller?", said
"The other one was a bit stouter and shorter." The learned trial Judge clearly understood
the evidence in this way. In his judgment there is more than one reference to the two men
in question by means of the description "shorter" and "taller"; for instance, he recited the
evidence of one of the security guards who said that he "noticed that the shorter of these
two men was holding a pistol in his hand and the taller man a machine gun".

In any event, there is no evidence that the two appellants in question could fairly be
described as tall and short respectively; there is evidence from one of the security guards
that one of the assailants was slender and tall and that the other man was a bit stouter and
shorter, but there is no evidence that either of these two descriptions fits either the first or
the third appellant. The Director of Public Prosecutions has presented his arguments on the
assumption that the descriptions do in fact fit, but the learned trial judge has not so held.
This court cannot then hold that the appearances of these two appellants in court was such
that it would be too fanciful a coincidence for them to fit the very general descriptions of
build given by the two security guards; there is nothing unusual in two men being of
different heights and different builds, and this item of evidence, particularly in the absence
of any evidence as to the appearance of the appellants, is not sufficient to exclude the
dangerf false implication by the accomplices.

I have had the opportunity to read the judgment just delivered by the learned Chief Justice.
It is said that in addition to the matters urged by the learned Director of Public Prosecutions
there are other items of evidence of a corroborative or supporting character on the basis of
which, had the trial judge addressed his mind to them, he would certainly have convicted in
any event. For reasons which will appear when I come to deal with the question of the
application of the proviso, it is necessary that I set out my views concerning these other
matters.

1978 ZR p130
BARON,D.C.J.

The finding of the overalls and the existence of a hole in the fence cannot as a matter of law
afford support for the story of the accomplices. Clearly the robbers wore overalls similar to
those worn by employees of the Breweries; clearly the robbers escaped through hole in the
fence. To this extent the accomplices were certainly speaking the truth. But unless there is
something to connect the appellants with the overalls found after the robbery or with the
hole in the fence this evidence is not capable of affording either corroboration or support,
and a judge sitting with a jury would so direct them. I repeat the famous dictum of Parke,
B., in Stubbs (6):

"An accomplice necessarily knows all the facts of the case, and his story, when the
question of identity is raised, does not receive any support from its consistency with those
facts."

No great significance can be attached to the denial by the appellants of their association.
Innocent persons facing serious criminal charges will very frequently, believing that a
particular allegation will tell against them, deny what is in fact true (see the comments in
Turnbull (22) concerning false alibis). Nor can I attach significance to the fact that the
accomplices named three men who were known to one another. If the accomplices had
named three people who were in fact strangers to them and who had turned out to be
associated with one another this would indeed have been a remarkable coincidence. But it is
not suggested that the appellants were strangers to the accomplices; on the contrary,
accomplices who for one reason or another are implicating the wrong people can be relied
upon to implicate people who are associated with one another and whom of necessity they
will know well enough to describe their houses and their cars and so on; and to add colour
to the implication, the people named are frequently known criminals. It adds nothing to the
weight of the testimony of accomplices that it is cohesive and accurate in detail and
implicates people known to one another. The same applies to the argument that if the
accomplices wished falsely to implicate the appellants they would have made thorough job
of it and implicated all of them in every stage of the crime. In my view accomplices who
have set out falsely to implicate people who were not in fact the culprits will be very careful,
in order to minimise the danger of their being caught out in lies, to stick entirely to the truth
save to the extent that they substitute different individuals for the ones who were actually
involved in the various events to which they depose.

The possession by the first appellant of some K1,200 is in a different category. There is no
doubt that evidence of this kind is of the nature of corroboration in the narrower sense in
which lawyers have understood the term; in other words, it is independent evidence which,
if regarded as being of sufficient weight, would tend to confirm or support the evidence of
the suspect witness. However, the matter was specifically argued by counsel at the trial as
being corroboration and the judge referred to the finding of this money in his judgment. It
cannot be argued that if the learned judge had appreciated that 'special and compelling
grounds" meant supporting evidence falling short of corroboration he might have regarded
this evidence in this light; it was either corroboration or nothing

1978 ZR p131
BARON, D.C.J.

But the learned judge held that there was not the slightest corroboration of the evidence of
the accomplices. He did not make any positive finding that he accepted the first appellant's
explanation as to how he had accumulated this money; on the other hand he cannot have
regarded that explanation as one which could not reasonably be true, since had he done so
he must have held this evidence to be corroboration. In my view this court cannot in those
circumstances hold that the explanation is not credible; the matter is in the category where
the finding of fact involves a view of the credibility of the witness, and where an appellate
court, not having had the advantage of seeing and hearing the witness, will not interfere
unless the finding is one which cannot reasonably be entertained on the evidence. It is not
therefore open to this court to use the possession of this money as corroboration.

Reference has been made also to the finding of a firearm in a wardrobe in the room in which
the first appellant slept along with other men. The evidence was that the first appellant was
only an overnight visitor in that house, and there is nothing to show that he knew of the
existence of the firearm. It Is pertinent to observe also that this item of evidence and the
finding of the money do not in any event advance the case against the other two appellants.

Finally, it is said that the question of threats or hope of reward does not arise because there
is no foundation in the evidence of the existence of such dangers and that to consider these
matters is unacceptable speculation. Of necessity there will, save in exceptional cases, be
no evidence that the accomplice has been influenced or may be influenced; where such
evidence exists it is axiomatic that the evidence of the accomplice will not be received. Thus
in R. v Pipe (27) evidence was sought to be led of an accomplice against whom proceedings
were still in progress in another trial; on appeal the evidence was held to have been wrongly
admitted. But such cases are truly exceptional; in the overwhelming run of cases there will
be not evidence of the particular motive an accomplice might have falsely to implicate an
accused person. The judge directing a Jury, or himself, must of necessity rely on his
knowledge of human nature and his experience of the kind of case before him to suggest to
his mind the nature of the risks involved in the particular case. It is impossible for a court
warning itself of these risks not to speculate, and indeed it is its duty to speculate. The
Devlin report recognised this when it said in the passage cited above that the standard
direction to a jury is based on the principle that they are the final judges of whether or not
the general danger applies in a particular case; the judge must explain to the jury the
genral danger present in the kind of case before it which give rise to the risk of false
implication. The test, as this court has unanimously laid down in the first portion of this
judgment, is whether the risks of false implication have been excluded; there are many
risks and they must all be excluded, and they are all of necessity speculative. Even
therefore if it there valid to argue that the risk has been excluded that the accomplices are
falsely implicating the appellants in the hope of financial reward, this is quite insufficient to
enable any court o say that their evidence can be safely relied upon. Motives of friendship
remain, and more particularly the possibility of intimidation. It is to be observed that one of

1978 ZR p132
BARON, D.C.J.

the inducements given to Smalls in Turner (20) was that after the trial he would be
conveyed in secrecy to a place of his choice; it is hardly necessary to spell out why Smalls
made this a condition of his giving evidence, and why the prosecution agreed to that
condition. And on the question of the hope of further financial reward the evidence
indicates, and the learned judge so held, that a sum of over K10,000 in cash was stolen,
and even if the sum found in the possession of the first appellant was part of the proceeds
of the robbery, an amount of over K9,000 has not been recovered.

Viewing the evidence as a whole, therefore, and taking into account the unsatisfactory
character of the evidence of PW7, the highly unsatisfactory conduct of the police in relation
to the sub-machine gun, and also the unhappy failure of the investigating officers to
examine the getaway car and cash box and the machine gun for fingerprints, not only is it
in my view impossible to say that any court behaving reasonably must have convicted, but I
am in no doubt that had I been sitting as the trial judge in this case I would not have
convicted. It follows that in my judgment the proviso cannot be applied, and that the
appeals should be allowed.

Finally, I must express myself on the concept; that the proviso can be applied by a
majority. I have dealt in detail with the evidence because I have been at pains to
demonstrate that my conclusion that it is quite insufficient to support a conviction, far less
to meet the test for the application of the proviso, is based on reasoned argument; my
conclusion cannot, I venture to think, be described as either perverse, capricious or
arbitrary. Other judges, perhaps a majority, might take a different view of the evidence -
and certainly three members of this court are among them. I accept the sincerity of their
view just as I assume that they accept the sincerity of mine. But once differing views are
held it is a contradiction in terms to say that the proviso can be applied; to apply it in those
circumstances is to fly in the face of the express terms of the test governing such
application.

It is said that decisions of this kind are frequently by a majority and that one cannot have a
situation in which a minority view prevails. Clearly it is correct that where differences arise
as to the law on a particular point the majority view must prevail; equally, there are
situations in which there may be differing views on fact and where the majority view must
prevail. In Benmax v Austin Motor Company Limited (28) Lord Reid said at p. 376:

"But in cases where there is no question of the credibility or reliability of any

witness, and in cases where the point in dispute is the proper inference to be drawn from
proved facts, an appeal court is generally in as good a position to evaluate the evidence as
the trial judge, and ought not to shrink from that task, though it ought, of course, to give
weight to his opinion."

He then quoted the following dictum by Lord Halsbury in Riekmann v Thierry (29):

1978 ZR p133
BARON, D.C.J.

"Upon appeal from a judge where both fact and law are open to appeal, it seems to
me that the appellate tribunal is bound to pronounce such judgment as in their view ought
to have been pronounced m the court from which the appeal proceeds, and that it is not
within their competence to say that they would have given a different judgment if they had
been the judge of first instance, but that because he has pronounced a different judgment
they will adhere to his decision."

It follows that different judges in the appellate court may arrive at different conclusions on
fact, and that the decision must then lee by a majority. But situations such as the foregoing
do not involve the application of the special test that the conclusion is one to which any
court behaving reasonably would certainly have come. I have been unable to find any case
either in England or in any other Commonwealth country where the proviso has been
applied by a majority, and I should be very surprised to learn that such a case exists since it
necessarily involves the statement by the majority of the court that the judges holding the
minority view are not behaving reasonably - in other words, that in expressing the views in
question they are behaving perversely, capriciously or arbitrarily. It cannot be said that a
judge is behaving unreasonably simply because one disagrees with his logic or the weight
he attaches to certain items of evidence. It seems to me self-evident that if I were of the
viewing a particular case that any judge behaving reasonably would on the evidence before
the court certainly have convicted, but I discover that one of my brethren holds a different
opinion, it then follows that I must of necessity revise my original view. It is not a question
of the view of the minority prevailing over that of the majority; it is the law that prevails, as
it must always do. The law lays down a test, designed for the protection of the innocent,
which must be met before the proviso can be applied, and this court has unanimously
settled the terms of that test as it applies In Zambia, where a trial judge sits alone or with
assessors. If the members of the appellate court diner in their view of the evidence at the
end of the day the question is simply this: can it possibly be asserted that any judge
behaving reasonably would certainly have convicted when one judge, for stated reasons,
has said in terms that he would not?

I am therefore satisfied that in a case such as this, where the matter turns on the weight to
be attached to, and the inferences to be drawn from, a number of items of evidence, the
proviso can never be applied by a majority. For this reason also these appeals should in my
judgment be allowed.

Judgment

GARDNER, J.S.: I respectfully concur with the judgment of the learned Deputy Chief Justice.
I agree that for the reasons given therein the evidence in this case does not successfully
dispel the danger of false implication. Were I trying this case as a judge of first instance I
too would acquit the appellants.

On the question as to whether or not the proviso can be applied by majority decision I
should like to add force to the argument that it

1978 ZR p134
GARDNER, J.S.

cannot be so applied by referring to the case of R. v Haddy (30. That case discussed the
question of the application of the proviso by approaching it by the use of a slightly different
phrase from that used in the case of Lewis (23) cited by both the learned Chief Justice and
Deputy Chief Justice. With that test I of course agree, but in the Haddy case (30) the matter
was approached by considering whether a jury properly directed could reasonably have
found the appellant not guilty. That is no different frown asking whether a court properly
directed must have come to the same conclusion (namely to convict); but it is a more
telling phrase in considering the question as to whether the proviso can be applied by a
majority. If, as this morning, two judges have said that they should have found the
appellants not guilty, then for the rest of the court to apply the proviso by a majority
amounts to their saying that the other two judges would be behaving unreasonably, and not
just that they hold a minority opinion. I would allow these appeals.
Judgment

BRUCE-LYLE, J.S.: I have had the advantage of reading the judgments of the learned Chief
Justice and the learned Deputy Chief Justice on the facts and on the law relating to the
application of the proviso and also on the issue as to whether or not the proviso can be
applied by a majority of the court. I agree with the learned Chief Justice that the proviso
can be applied by the majority. The learned Chief Justice has in precise detail set out the
evidence adduced by the prosecution and the defence, and I do not intend to reiterate
them. I would however, endeavour to examine and state my views on certain aspects of the
facts which make the application of the proviso inevitable.

There was the evidence by PW6 that during the discussions with the first and second
appellants and Jere it was suggested to them that to avoid identification at the place of the
robbery, they should wear brewery overalls, and that he would supply them with the
overalls. There was the evidence that those who staged the robbery wore brewery overalls
and that these overalls were recovered by the police after the robbery. On the evidence
those who committed the robbery in fact wore overalls similar to those which were supplied
to the first and second appellants by PW6 and I do consider this a remarkable coincidence.

There was clear evidence that when PW11 apprehended the second and third appellants in
the Anglia vehicle, registration No. M90, PWs 6 and 7, the accomplices had not been
apprehended. PWs 6 and 7 were apprehended on the 11th and 14th December respectively
and PW11 intercepted the vehicle M90 in Lusaka on the 6th December. PW11 stated that he
had his information about this vehicle from sources other than PWs 6 and 7. He refused to
divulge his source of information and his refusal to do so cannot be construed to mean that
he might have got the information from PWs 6 and 7 because they were not in police
custody at that time. There was the evidence by PWs 6 and 7 that on most occasions during
the plotting with first and second appellants to rob the Brewery, they lead travelled in this
very vehicle, registration No. M90. There could be the speculation that PWs 6 and 7 after
they had been apprehended got to know about second and third appellants having been
apprehended while in the vehicle M90 and therefore could have based their statements

1978 ZR p135
BRUCE-LYLE, J.S.

to the police and their evidence in court on that knowledge gained to implicate the
appellants who might be innocent. There was however no suggestion by the defence at the
trial that this was what happened and therefore such speculation in my view, cannot be
entertained. Why did PWs 6 and 7 mention a particular Anglia model car registration No.
M90 and no other vehicle.

If PWs 6 and 7 intended to implicate the appellants who were innocent they would have
mentioned third appellant as well as having been involved in the planning of the robbery
right from the onset. I regard this as not the case. PW6 in his evidence did not in any way
implicate third appellant, he could not have done so because he was not with PW7 when the
third appellant was found working on the registration number plates of the Fiat motor
vehicle. If PW6 was implicating innocent persons I cannot see what could have prevented
him fabricating evidence about the third appellant that he was in the plan right from the
onset. PW7 also did not mention the third appellant as having been involved in the planning.
His evidence connecting third appellant with the offence was only that he saw him at the
house of Jere working on the number plates of the Fiat car. Again nothing could have
prevented him involving third appellant in the whole plan to rob the Brewery if indeed he
wanted simply to implicate innocent persons.

It is also significant that if it was the intention of PWs 6 and 7 to implicate innocent
persons as was the suggestion of the defence counsel at the trial, their evidence would have
been concocted. I hold the view that their evidence cannot be a concoction. PWs 6 and 7
were not all the as time together with Jere and the first and second appellants. There was
the evidence of PW6 that when they met Jere and the first and second appellants at Border
Motors as arranged he did not go with them from Border Motors and this was corroborated
by PW7. If the evidence had been concocted or rehearsed I cannot see how PW6 could have
avoided being involved with the first and second appellants and Jere when they travelled
from Border Motors. PW6's evidence as to this minute detail in the planning of the
robbery to me appears the truth and nothing else and it is the truth as to how the robbery
was planned.

PW7 stated in evidence that when he saw the Fiat car outside the Brewery fence on the
day of the robbery he saw the three appellants in the vehicle but before the robbery the
second appellant was at the wheel of the vehicle and that the second appellant waved to
him before he waved back. However, PW6 in his evidence did not implicate the third
appellant as being in the vehicle at that time. I consider this to be pointer to the fact that
the two accomplice witnesses were not out to implicate innocent persons. Nothing could
have prevented PW6 if indeed he was bent on implicating the third appellant, to state that
he recognised the third appellant in the vehicle.

There was the evidence of PW7 that after the third appellant had finished working on the
number plate of the Fiat car, he, the first appellant, the second appellant and the third
appellant went in this very car to the Breweries where it was suggested that a hole would be
made in the

1978 ZR p136
BRUCE-LYLE, J.S.

fence. PW6 never mentioned anything about the making of this hole in the fence because he
was not with PW7 at the time when the suggestion was made. If indeed PWs 6 and 7 were
concocting or they had rehearsed a case against the appellants I cannot see what could
have prevented PW6 also adopting the evidence of PW7 as regards the making of this hole
in the fence.

Mr Osakwe, the learned Director of Legal Aid, however argued that even if there were facts
from the evidence which can be construed as supporting the trial judge's finding, the
evidence of PWs 6 and 7 was so unreliable that their evidence should have been completely
disregarded. In support Mr. Osakwe submitted that on the evidence there was the
probability that PWs 6 and 7 were shown photographs of the appellants by the police before
they made their statements implicating the appellants. Mr Osakwe however agreed that
there was no evidence that the photo graphs were in fact shown to PWs 6 and 7 but argued
that because PW12 admitted having seen the photographs of Gilbert Mutale and of one
other person, the probable inference is inevitable that if the police thought it expedient to
show the photographs to PW12 they could have shown photographs of the appellants to
PW6 and 7 in order to get PWs 6 and 7 to implicate the appellants. There was no evidence
and not even a suggestion by the defence that PWs 6 and 7 were in fact shown photographs
of the appellants at any time when they were in police custody.

Mr Osakwe further argued that PWs 6 and 7 admitted having told lies to the trial court and
that on the strength of that their evidence should have been rejected by the learned trial
judge. He pointed out in support of this contention that PWs 6 and 7 by their evidence were
in fact involved in the commission of the offence and yet when they were arraigned before
the lower court on a charge of conspiracy each pleaded not guilty to the charge and which
pleas meant that they had lied because by their pleas they meant that they knew nothing
about the robbery. I hold the view that the plea of not guilty to a charge by an accused
person who is subsequently found to be guilty of the charge does not in any way make the
accused person a liar because he had earlier pleaded not guilty. The plea of not guilty by
an accused person to a charge in my view simply means that the accused person has the
honest belief though subsequently found to be a mistaken one, that he has a good defence
to a charge. The submission of Mr Osakwe is therefore untenable.

Mr Osakwe further directed the court's attention to the evidence of the police officer who
stated that he did not find any fingerprints on the abandoned Fiat car and on the cash box
which was in the car, and submitted that this police officer not being a fingerprint expert
and not having stated by what method he came to the conclusion that there were no
fingerprints, his evidence could not be conclusive and that there could have been the
inference that there were fingerprints not of the appellants on the car and on the cash box,
and therefore in the absence of evidence that may be favourable to the appellants the
evidence of PWs 6 and 7 should have been rejected by the trial court. There was no
suggestion in

1978 ZR p137
BRUCE-LYLE, J.S.

the cross-examination of this police witness that he never looked for fingerprints and he was
not asked to tell the court the method by which he came to the conclusion that there were
no fingerprints. In the absence of evidence which can be deemed to render the evidence of
this witness unsatisfactory, I would hold that his evidence stood unchallenged and therefore
the fact that there were no fingerprints found on the car and on the cash box also stands
unchallenged and I am unable to accept the submission that there could have been
evidence favourable to the appellants.

I have endeavoured to pinpoint the evidence of odd and remarkable coincidences and
evidence negativing concoction by PWs 6 and 7, and these in my view provide evidence of
the "something more" which is necessary to confirm the evidence of the accomplice
witnesses and gives support to the learned trial judge's finding of being fully convinced of
the truth of the evidence of the accomplices. On the facts I have stated, and bearing in
mind the test laid down I find that there has been no miscarriage of justice and I would
apply the proviso in this case. In the result I would dismiss the appeals of all the appellants.

Judgment

MUWO,A.J.S.: I have had the advantage of reading the judgments of the learned Chief
Justice and learned Deputy Chief Justice on the facts and on the law relating to the
application of the proviso. The learned Chief Justice has made a precise of the evidence
adduced by the prosecution and the defence, and I do not intend to reiterate them. Nor do I
wish to add anything to matters of fact.

I wish, however to say that there are two points upon which I wish to express my well
considered views.
(1) Coincidences which have been largely debated in this case, in fact amount to
evidence of "something more" which provides a support for the evidence of the accomplices
in this case, these coincidences have been dealt with in detail in the Chief Justice's
judgment and I need not elaborate upon them.
(2) It is clear that the learned trial judge convicted the appellants solely on the ground
that he believed in the truth of the accomplices without giving consideration to the evidence
of "something more" In so doing the learned trial judge misdirected himself. However; had
he looked for other evidence, or what we term "something more", which tended to confirm
other evidence in essential particulars he must inevitably have found that there was ample
evidence upon which to convict which in fact he did and rightly so.

In the light of this I am convinced that the proviso should be applied and consequently I
would dismiss all the appeals.

On the question of whether or not a bench of five judges who may find themselves divided
as to the question of accepting the majority decision or that of the minority should defeat
the cause of justice in applying the proviso, I would hold that the majority decision should
prevail.

Judgment

SILUNGWE,C.J.: The order of the court is that the appeals against conviction of all three
appellants are dismissed. As to sentence,

1978 ZR p138
SILUNGWE, C.J.

each appellant was sentenced to fifty years' imprisonment with hard labour. These
sentences come to us with a sense of shock as being excessive. They were imposed for
deterrent reasons which had ceased to apply at the time of the trial because the offence by
then was a capital offence, firearms having been carried. Before the change in the law
courts normally imposed a custodial sentence of twenty years for this type of offence; we
think this sentence is also appropriate in this case. The appeals against sentences are
allowed. The sentences are set aside and in substitution therefore each appellant will serve
twenty years' imprisonment with hard labour faith effect from their respective dates of
arrest.

Appeal dismissed

IN THE MATTER OF CHARLES MATAKALA SIKUKA (1978) Z.R. 138 (H.C.)

HIGH COURT
HADDEN,J.
31ST JANUARY, 1978
1978/HP/70

Flynote
Constitutional law - Habeas corpus - Practice and procedure - Zambian laws silent -
Procedure to be followed - High Court Act, Cap. 50, s. 10.
Constitutional law - Habeas corpus - Applications to successive judges during term -
Whether possible.
Constitutional law - Prerogative writs - Divisional Courts - Powers exercised by High Court in
Zambia.

Headnote

The applicant applied for a writ of habeas corpus. He had previously made similar
application before another judge of the High Court which had been refused. The grounds of
the applications were identical.

Held:
(i) Zambian laws being silent on the practice and procedure to be followed in an
application for writ of habeas corpus, the practice and procedure set out in O.
54, r. 1 (1) of the Supreme Court Rules (England) should be followed.

(ii) Application for writs of habeas corpus may not be made to successive judges
during term.

(iii) There are no Divisional Courts in Zambia. A High Court judge sitting alone
exercises the powers of a Divisional Court in hearing application for
prerogative writs.

Cases cited:

(1) Re. Hastings (No. 2) [1959] 1 Q.B. 358.

(2) Re. Hastings (No. 3) [1959] Ch. 368.
(3) Re. Kray [1965] Ch. 736.
(4) Chendaeka v The Municipal Council of Luanshya 1969/HM/160.

Legislation referred to:

High Court Act, Cap. 50, ss. 4, 10.

Supreme Court Rules (England) O. 54, r. 1 (1).
Administration of Justice Act, 1960 (England), s. 14 (2).
Constitution of Zambia, Art. 109.

For the applicant: In person

Judgment

HADDEN, J.: This is an application for a writ of habeas corpus; the applicant is not
represented.

When the application came before me, the applicant requested that the court allocate funds
so that he could engage the services of an advocate in private practice as he does not wish
to be represented by legal aid counsel. The applicant further informed the court that he had
previously made a similar application for a writ before Sakala, J., which had been refused.
For this reason, I called for that record, which is No. 1977/HP/1229.
In the former proceedings, the applicant was represented by legal aid counsel, and the
grounds for the application were identical to those in these proceedings. A preliminary issue
for determination, therefore, is whether I have jurisdiction to hear this second application.

The practice and procedure to be followed by the High Court is set out in s. 10 of the High
Court Act:

"10. The jurisdiction vested in the Court shall, as regards practice and procedure, be
exercised in the manner provided by this Act and the Criminal Procedure Code, or by any
other written law, or by such rules, order or directions of the Court as may be made under
this Act, or the said Code, or such written law, and in default thereof in substantial
conformity with the law and practice for the time lying observed in England in the High
Court of Justice."

As no provision is made by the High Court Act, or by any other written law, rules, orders or
directions for the practice and procedure to be followed in Zambia when application is made
for writ of habeas corpus, the practice and procedure set out in O. 54, r. 1 (1) of the Rules
of the Supreme Court has to be followed:

"1. (1) Subject to rule 11, an application for a writ of habeas corpus ad subjiciendum
must be made to a Divisional Court of the Queen's Bench Division or, if no such Court is
sitting, to a single judge in court, except; that -

(a) in vacation or at any time when no judge is sitting in court, it may be made to
a judge otherwise than in court, and
(b) in cases where the application is made on behalf of an infant, it must be
made in the first instance to a judge other" wise than in court."

There are, however, no Divisional Courts in Zambia.

For many years it has been thought that, in England, successive applications of this nature
could be made to judges of the High Court as well as to the Divisional Court of the Queen's
Bench Division, but in Re. Hastings (No. 2) (1) it was held that an application, once refused
by a Divisional Court of the Queen's Bench Division, could not be heard again by another
Divisional Court of the same Division. On an application by the same applicant to a
Divisional Court of the Chancery Division, the court in Re. Hastings (No. 3) (2) held that the
Court of the Queen's Bench Division and the Court of Chancery no longer exist as separate
courts; they are both divisions of one court, the High Court of Justice. As Vaisey, J., at p.
377, said:

"The applicant used an expression which he must suppose to be flattering to us who

are sitting here. He said in his affidavit that he had decided to come for a 'complete hearing
before a hitherto unconnected and impartial bench, and this I seek in the Chancery Court.'
The number of misconceptions which are bound up in that sentence is almost beyond
reckoning. To begin with, while I hope it is an impartial bench, it is certainly not an
independent bench. Indeed, as Lord Parker has ruled with, I think, perfect accuracy, as
soon as the Divisional Court of the Queen's Bench Division has come to its conclusion there
is an end to the matter, and, as I observed yesterday, it always has to be remembered that
our orders are not orders of any particular Divisional Court; our orders are orders of the
High Court."
However, Harman, J., at p. 379, noted that there had been a right for successive
applications to be made before different judges during vacation:

"It is always sad to be stripped of an illusion, but I like, I expect, most lawyers, have
grown up in the belief that in cases of habeas corpus the suppliant could go from judge to
judge until he could find one more merciful than his brethren. That illusion was stripped
from me when I read the report of the decision in the Queen's Bench Divisional Court last
year in this very case. The decision was based upon this, that there never had been such
a right. There had been a right to go from court to court; there had been a right in vacation
to go from judge to judge, for the simple reason that the court was not sitting in banc; but
there had never been a right in term time to go from one judge to another when the court
to which the application should properly be made was available."

And at p.380:

"In my judgment, this application therefore is precluded, by the absence of the

ancient but imaginary right, to go round and round and round from judge to judge when the
term is in progress. There never was such a thing; there is not now; and this applicants
having had the judgment of the High Court, cannot have another one."

The Lord Chancellor, Lord Gardner, in Re. Kray (3), when considering Re. Hastings (No. 2)
(1), pointed out that the court in the latter case had left open the question whether an
application for a writ could be made to successive judges during vacation. At p. 742, he
said:

"The Crown contended that, contrary to what had been generally presumed, an
applicant had never had a right to go, as it was said, from judge to judge except when the
court was not sitting, and that, although prior to the Judicature Act an applicant could go
from court to court, yet at any rate since 1880 when those courts had been fused, an
applicant who had been to a Queen's Bench Divisional Court had exhausted his rights in
regard to all the judges of the Queen's Bench Division. The court (Lord Parker, C.J., Hilbery
and Diplock, J.J.) in a judgment read by Lord Parker, in which, he said, all the members of
the ourt had collaborated, accepted the second submission, but left the first open, while
saying that prior to the Act of 1679 there appeared to be no trace of any of the courts
issuing the writ except in term time and on motion to the court sitting in banc, that the
court could find no suggestion in the cases or the writings of lawyers that the limitation that
a single judge could only issue the writ in vacation was ever impinged on, except for an
observation of Lord Hailsham L.C. in Eshubayi Eleko v Nigeria Government (Officer
Administering) (1928) A.C. 459; 44 T.L.R. 632, P. and of Denning, L.J., in Ex p. Chapple
(1950) 66 T.L.R. (Pt. 2) 932, C.A. both of which were obiter, and the court held that they
had no jurisdiction, as did theChancery Division when the applicant subsequently applied to
that Division (in Re. Hastings (No. 3) (1959) Ch. 368; (1959) 2 W.L.R. 454; (1959) 1 All
E.R.698 unsuccessfully."

Prior to 1960 the position was that an applicant could apply once and once only for writ to
a Divisional Court, but could probably make successive applications to judges during
vacation. If this latter right did exist it was abolished by the passing of the Administration of
Justice Act, 1960. S. 14 (2) of the Act reads:

"Notwithstanding anything in any enactment or rule of law, where a criminal or civil

application for habeas corpus has been made by or in respect of any person, no such
application shall again be made by or in respect of that person on the same grounds,
whether to the same court or judge, unless fresh evidence is adduced in support of the
application; and no such application shall in any case be made to the Lord Chancellor."

This Act has not been applied to Zambia.

The High Court of Judicature for Zambia is constituted by Art. 109 of the Constitution and
the powers and jurisdiction of its judges is set out in s. 4 of the High Court Act:

"Subject to any express statutory provision to the contrary, all the Judges shall have
and may exercise in all respects, equal power, authority and jurisdiction, and, subject as
aforesaid, any Judge may exercise all or any part of the jurisdiction by this Act or otherwise
vested in the Court, and, for such purpose, shall be and form a Court."

As there are no Divisional Courts in Zambia, applications for prerogative writs are made to
the High Court. Waheln, J., in Chendaeka v The Municipal Council of Luanshya (4), after
considering cases in Zambia where two judges sat when hearing similar applications, said:

"I consider that in the instances I have quoted when two judges heard the
applications it would be incorrect to say that they were constituting a Divisional Court.
Divisional Courts of the High Court in England were first established under the Judicature
Act of 1873 and derive their present authority from the Supreme Court of Judicature
(Consolidation) Act 1925. A Divisional Court comprises more than one judge, either two or
on special occasions three judges. But the fact that two or more judges comprise a court
does not make that court a Divisional Court and in the absence of the constitution of
Divisional Courts by the law of this country I do not consider that they can be said to exist
here. It follows, therefore, that in this country applications for prerogative writs can be
made to the High Court and as a judge of the High Court sitting alone can exercise all the
powers of that court he can hear such applications sitting alone. The expression 'practice
and procedure' in Section 10 of the High Court Ordinance cannot apply to the constitution of
the court itself but only as to how matters are brought before the court. Thus when it is
sought to apply for one of the prerogative writs the procedure laid down by the Rules of the
Supreme Court must be observed to the extent that they can be, but any reference to a
Divisional Court must be taken as being to the High Court of Zambia which as I have said
can comprise a single judge."

Following Chendaeka v The Municipal Council of Luanshya (4), the applicant in this case
made application to a single judge of the High Court. I am now asked to reconsider this
same application, an application that has already been rejected by another judge of this
Court. Vaisey, J., in Re Hastings (No. 3) (2), at p. 377, said:

"How we, judges of the High Court, could be heard to override, overrule or otherwise
interfere with a judgment which was the result of the hearing by the Divisional Court, or
how we could be heard to say that the conclusion of that court, and its order - an order of
our own court, the only court which exists, the High Court of Justice - was wrong, and that
something else should be done, is beyond my comprehension.

When the Queen's Bench Divisional Court, acting strictly under the rules, came to its
conclusion that finally disposed of the application of this applicant for the issue of a writ of
habeas corpus, I cannot see how this court, or how we, as judges, could possibly be heard
to stultify a decision of the court of which we are our selves constituent parts: we are all of
us judges of the High Court.
 I cannot see how we could be heard to contradict an order which has been made for
us in our name, and by the only court which has jurisdiction in this matter."

The first application was made during term, and the refusal of such application was a
decision which, if made in England, would have been one of a Divisional Court. It was made
in the name of all the judges of the High Court and is one that I am unable to reconsider;
this application is accordingly rejected.

It is not necessary for me to consider the position that might have arisen if the original
application had been made during vacation or was made on behalf of an infant; that is,
whether an applicant in Zambia can make successive applications before single judges
during vacation or on behalf of an infant, but only one in all other cases.

Application rejected

PAUL MUSOLE WASA-MUNU v THE PEOPLE (1978) Z.R .143 (S.C.)

SUPREME COURT
SILUNGWE,C.J., BARON, D.C.J., AND GARDNER, J.S.
10TH MAY, 1977 AND 6TH JANUARY, 1978
(S.C.Z. JUDGMENT NO. 3 OF 1978)

Flynote

Criminal law and procedure - Appeal - Facts properly found by trial court not in dispute -
Proper approach of appellate court.

Headnote

The appellant, a sergeant in the Zambia Police Force, was convicted of causing death by
dangerous driving. The appeal was dismissed on the facts by a majority, the learned Chief
Justice dissenting. The case is reported only on the issue of the proper approach by an
appellate court where the question is purely one of inference from facts about which as
there is no dispute.

Held:
(Per Baron, D.C.J.) where the question is purely one of inference from facts about
which there is no dispute an
appellate court has both the right and the duty to substitute its own views for those
of the trial judge.

Cases cited:

(1) Benmax v Austin motor Co. Ltd [1955] AC 370.

(2) Challoner v Williams & Croney (1975) 1 Lloyds Law Reports 124.

For the appellant: M.S. Kapumpa, Assistant Senior legal Aid Counsel.
For the respondent: G.T. Moruthane (Miss), State Advocate.

Judgment
BARON,D.C.J.: having discussed certain findings of fact made by the trial judge, continued.

The first question for this court is whether the findings of primary facts made in the passage
cited above were findings which could reasonably be arrived at on the evidence before the
trial court; if they were there is no basis on which this court can upset them. The important
findings are: first, that the appellant had his siren and headlights and flashing lights on
before he saw the cyclist, which was common cause. Secondly, he found that the cyclist
must have been on his way across the road by the time the accused started to overtake the
truck; all the evidence on the point established that had the cyclist continued across the
road he would have passed behind the truck; consequently the appellant's vision could not
have been obscured and at the time the appellant started to overtake the truck the cyclist
must have been in a position where he could be seen.

The second question for this court is whether on the basis of those findings of primary fact
and the uncontroverted evidence on record, including the real evidence, the inference that
the appellant was not keeping a proper lookout and was travelling too fast in all the
circumstances is the only inference which can reasonably be drawn. I stress that this court,
where the question is purely one of inference from facts about which there is no dispute,
has both the right and the duty to substitute its own views for those of the trial judge (see
Benmax v Austin Motor Co. Ltd (1) and in particular the dicta of Viscount Simonds and Lord
Reid). A particularly appropriate illustration of this principle is the case of Challoner v
Williams & Croney (2), where the Court of Appeal substituted its own opinion for that of the
trial judge as to how a reasonably prudent driver should behave in circumstances
established by the facts as found.

Appeal dismissed

ZACHARIA TITUS ZANDAMELA v MANAGEMENT COMMITTEE OF THE LOCAL

AUTHORITIES SUPERANNUATION FUND (1978) Z.R. 144 (H.C.)

HIGH COURT
J.H. JEARY, COMMISSIONER
5TH APRIL,1978
(1977/HP/803)

Flynote

Administrative law - Declaratory judgment - Local Authority employee - Retirement benefit -

Claim not allowed - Decision not appealed from or referred to the Minister - Whether court
has jurisdiction.
Estoppel - Act of Parliament - Whether plea of estoppel available against.

Headnote

The plaintiff applied for a declaration claiming retirement benefit under the Local Authorities
Superannuation Fund Act, Cap. 746. The defendant Committee had rejected his claim and
he (the plaintiff) had neither appealed nor referred the matter to the Minister as required
under ss. 40 (a) and 43 of the Act, Cap. 746. Although the issue of jurisdiction was not
raised by the parties it was considered whether the court had jurisdiction to entertain the
claim.

Held:
(i) Where the legislature has thought it proper to lay down that the
determination of a certain question should be made by some authority other
than the courts, the court has no jurisdiction to override Parliament and
jurisdiction to determine that which Parliament has said shall be determined
by some other person or body.

Dictum of Hallet, J., in East Midlands Gas Board v Doncaster Corporation (1)
adopted.

(ii) Even if a defendant does not seek the protection of an Act of Parliament, a
court has no jurisdiction to entertain a claim excluded by such Act for one
cannot set up an estoppel against an Act of Parliament.

Cases cited:

(1) East Midlands Gas Board v Doncaster (corporation [1953] 1 All E.R. 54.
(2) Joseph Crosfied and Sons Ltd v Manchester Ship Canal Company [1904] 2 Ch.D. 135
(3) Gillingham Corporation v Kent County Council [1952] 2 All E.R. 1107.
(4) Pyx Granite Co. Ltd v Ministry of Housing and Local Government [1959] 3 All E.R. 1.
(5) Department of Health and Social Security v Walker Dean Walker Limited [1970] 1 All
E.R. 257.
(6) Anisminic Limited v Foreign Compensation Commission [1969] 1 All E.R.
208.

Legislation referred to:

Local Authorities Superannuation Act, Cap. 746, ss. 29 (1 ) (a), 29 (3), 40 (a), 43. Gas
Act, 1948 (England), s. 37 (1), 37 (2).

For the plaintiff: H.B. Hawacha of Hawacha and Company.

For the defendant: M.M. Gondwe of Lusaka City Council.

Judgment

JEARY, COMMISSIONER: The plaintiff claims a declaration that he is entitled to a

retirement benefit under s. 29 (1) (a) and (3) of the Local Authorities Superannuation Fund
Act (Cap. 476 of the Laws) (hereinafter called the "Act"). Putting it shortly, the defendant
denies the pIaintiff's claim on two alternative grounds, firstly, that the plaintiff was not an
"eligible employee" under s. 2 of the Act when he purported to become a member of the
Fund in 1970, or secondly, that only permanent and pensionable employees are entitled to
a retirement benefit under s. 29 of the Act, and the plaintiff was not such, having been
employed as an expatriate on a fixed term contract.

After hearing evidence and argument over a period of some two days I reserved my
decision.

On considering the Act I came across two sections of the Act, s. 40 (a) and s. 43, which go
to the court's jurisdiction to entertain this claim, and I can only express my astonishment
that neither counsel for the plaintiff nor for the defendant referred to either of these
sections in their pleadings or submissions. Section 40, so far as is relevant, reads as
follows:

"The Committee shall, subject to the provisions of this Act, have power -

(a) to decide any doubt as to whether any person is an eligible employee:

Provided that, where it is decided that a person is not an eligible employee, such person
may appeal from such decision to the Minister whose decision thereon shall be final ;"

Section 43 reads as follows:

"Any dispute that may arise between the Committee and an associated authority or a
member or a former member or any person deriving the claim from a member about any
matter under this Act or any rules made thereunder shall be decided by the Committee and,
if any party to the dispute is dissatisfied with the decision or the failure of the Committee to
come to a decision, the Committee shall, on the request of the dissatisfied party, refer the
dispute to the Minister for his determination and the decision of the Minister upon any such
matter shall be final."

On the evidence before me the plaintiff has not appealed to the Minister under s. 40 (a) or
requested that the dispute be referred to the Minister under s. 43.

In East Midlands Gas Board v Doncaster Corporation (1) the defendant claimed that the
court's jurisdiction had been ousted by s. 37 (2) of the Gas Act 1948 which reads:

"Any claim under this section by the appropriate board against the local authority
shall be made before the expiration of a period of twelve months beginning with the vesting
date, and if so made and not settled by agreement, shall be determined by the Minister of
Health."

Hallett, J., at p. 57 said:

"The second point taken by counsel for the gas board is that, whether the claim was
or was not a valid claim under the provisions of Section 37 (1) having regard to the facts of
this case, by Section 37 (2) the validity of the claim is expressly referred by the legislature
to the Minister of Health for determination, and accordingly, on well known principles and in
the light of abundant authority, this Court has no jurisdiction to decide whether or not the
claim is valid, because its validity was considered by the Minister of Health who determined
the question adversely to the defendant corporation.

I do not think that the law is in any doubt: See Crisp v Bunbury, decided in 1832 and
referred to with approval by Vaugham Williams L.J., in Joseph Crosfied and Sons Limited v
Manchester Ship Canal Company (2). The decision in those cases can be summarised as
follows. If two persons agree that any dispute which may arise between them in respect of
any matter shall be referred to the determination of a third person, that agreement will not
oust the jurisdiction of the court, but, since the court attaches importance to the sanctity of
contract, the court will, generally speaking, in the exercise of its discretion and in aid of that
sanctity of contract, stay an action which is brought in contravention of or non-compliance
with what has been agreed. That is what happens in the usual case where there is what is
commonly called an arbitration clause, and one party, notwithstanding the arbitration
clause, seeks to resort to the courts. On the other hand, where the legislature has thought
it proper to lay down that the determination of certain question should be made by some
authority other than the courts, the courts have no jurisdiction to override Parliament and
no jurisdiction to determine that which Parliament has said shall be determined by some
other person or body. If the other person or body, being in the nature of an inferior
tribunal, proceeds to exceed its authority or not to exercise it properly, then, in certain
appropriate cases, the Queen's Bench Division of the High Court of Justice, acting through
the Divisional Court, can restrain the person or body so acting by processes which are well
known, but apart from that authority which can be exercised over inferior tribunals, the
court cannot proceed as an appellate authority to review, and, if it thinks right, overrule,
the determination of a person or body to whom Parliament has entrusted the determination
of the particular problem."

He then went on to consider whether on the facts of that case the dispute fell within s. 37
(2) and, concluding that they did, held that the court had no jurisdiction. To the same effect
is the decision in Gillingham Corporation v Kent County Council (3).

I must therefore consider at the outset whether the plaintiff's claim in this action falls within
either s. 40 (a) or s. 43 of the Act.

In doing so I bear in mind what was said by Viscount Simonds in Pyx Granite Company
Limited v Ministry of Housing and Local Government (4) at p. 6 on the subject of litigants
being denied access to the court and repeated by Chapman, J, in Department of Health and
Social Security v Walker Dean Walker Limited (5) at p. 760:

"It is a principle not by any means to be whittled down that the subject's recourse to
Her Majesty's courts for the determination of his rights is not to be excluded except by clear
words. That is, as McNair J. called it in Francis v Yiewsley and West Drayton Urban District
Council, a 'fundamental rule' from which I would not for my part sanction any departure. It
must be asked then what is there in the Act of 1947 which bars such recourse."

In regard to s. 40 (a) it is common cause that the defendant committee rejected the
plaintiff's claim on the basis of advise from the defendant's hon. legal adviser to the effect
that the plaintiff was not an eligible employee. A copy of the legal adviser's opinion had
been furnished to the plaintiff and was put in evidence by him as exhibit P10. It is now
freely admitted by the defendant that the opinion was given on the basis of an incorrect
assumption of fact by the hon. legal adviser as to the date upon which the plaintiff first
entered Local Government Service in Zambia (see paragraph 1 of the opinion) but,
nevertheless, there was clearly a decision by the committee within the meaning of s. 40 (a).

Section 43 applies to any dispute between the defendant and "a member or a former
member or any person deriving the claim from a member about any matter under this Act".
It is pleaded and asserted by the plaintiff that he is a member and the establishment of this
fact is essential to his case. Accordingly, notwithstanding that the defendant denies his
membership, if he is a member he is caught by this section. If he is not a member then his
claim must fail in limine. Equally, there can be no doubt that this is a dispute about a
"matter under this Act".

I accordingly conclude that his court has no jurisdiction to entertain the plaintiff's claim and
this is so even though the defendant has not sought the protection of these sections. It has
recently been held by the Supreme Court in another context that one cannot set up an
estoppel against an Act of Parliament, and to adopt the words of Mallet, J., quoted earlier in
this judgment:

"Where the legislature has thought it proper to lay down that the determination of a
certain question should be made by some authority other than the courts, the courts have
no jurisdiction to override Parliament and no jurisdiction to determine that which Parliament
has said shall be determined by some other person or body."

A fortiori, the defendant cannot vest such jurisdiction in the courts by ignoring these
sections.

Having come to this conclusion I have anxiously considered whether I should proceed to
consider the plaintiff's claim on its merits in case I should be wrong in what I have said
above. Hamlets, J., did so in the East Midland Gas Board (1) case, but there is a significant
difference between that case and the instant case, in that in that case the matter had
already been considered and determined by the Minister. In this case that has not happened
and I think it would be wrong of this court to say anything which might be seen as an
attempt to influence the Minister in a matter where, in my judgment, he has exclusive
jurisdiction at this time. The fact that any decision of the Minister might subsequently be
capable of being challenged before the courts on the basis of the principles laid down in
Anisminic Limited v Foreign Compensation Commission (6) is, at the present time,
irrelevant.

I have in fact reached certain conclusions on the merits of the claim but will not state them
at this time for the reason given above.

The plaintiff's claim is accordingly dismissed with costs.

Claim dismissed

JUMA ZAKALIA v THE PEOPLE (1978) Z.R. 149 (S.C.)

SUPREME COURT
BARON,D.C.J., CHOMBA AND GARDNER, JJ.S.
23RD MAY, 1978
(S.C.Z. JUDGMENT NO. 23 OF 1978)

Flynote

Criminal law and procedure - Unlawful wounding - Meaning of "wound" - Penal Code, Cap.
146, s. 4.
Criminal law and procedure - Applicant improperly convicted of unlawful wounding -
Substitution of minor offence.

Headnote

The applicant and another man were convicted of unlawful wounding, the allegation being
that they assaulted the complainant and inflicted injuries on him with an iron bar.

Held:
(i) "Wound" is defined in s. 4 of the Penal Code as "any incision or puncture
which divides or pierces any exterior membrane of the body". A laceration
 inflicted by a blow with an iron bar which breaks the skin is not a wound
within this definition.

Lengwe v The People (1) followed.

(iii) Although on the facts the applicant could have been charged with aggravated
assault contrary to s. 295 of the Penal Code, or assault occasioning actual
bodily harm contrary to s. 248 of the Penal Code, it was not open to the court
to substitute convictions under either of those sections because both those
other offences are more serious than the offence of unlawful wounding. The
only conviction possible by way of substitution was one for common assault.

Cases cited:

(1) Lengwe v The People (1976) Z.R. 127.

(2) N'gambi v The People (1975) Z.R. 97.

Legislation referred to:

Penal Code, ss. 247, 248, 295.

For the applicant: In person.

For the respondent: A.G. Kinariwala, State Advocate. 10

Judgment

BARON, D.J.: delivered the judgment of the court.

The applicant and another man were convicted of unlawful wounding the allegation being
that they assaulted the complainant and inflicted injuries on him with bar. There is evidence
that they interfered with a juke box in the tavern an which juke complainant was a
watchman, but there is no evidence that anything was actually stolen.

In addition to the complainant himself the applicant was identified by a business man who
saw two people running away from the tavern. This witness had been awakened at 0300
hours in the morning and he saw the two men bit the lights of the tavern. He told the court
that he knew both accused persons before, that he was only about ten metres away, and
specifically in relation to the present applicant he said in cross-examination that he knew all
the applicant's family and that he saw him clearly in the lights. The complainant also said
that he knew both the accused persons very well and saw them clearly in the lights. There
was thus ample evidence on which the learned trial magistrate was entitled to come to the
conclusion that the applicant had been satis factorily identified and there is no basis on
which this court can interfere.

However, the accused persons were charged with unlawful wounding and convicted. This
court has had occasion to consider this point more than once in the past and we refer for
instance to Lengwe v The People (1) in which we followed an earlier decision of the same
court in the case of N'gambi v The People (2). In Lengwe (1) we quoted the following
passage from N'gambi (2), and since it appears that those responsible for prosecutions have
overlooked these decisions we must, at the risk of labouring the matter, cite the passage
again.
 "'wound' is defined in section 4 of the Penal Code as 'any incision or puncture which
divides or pierces any exterior membrane of the body'. A laceration inflicted by a blow with
a stick which breaks the skin is not a wound within this definition. The meanings of the
words 'incision' and 'puncture' make it clear that such a wound can be inflected only by a
weapon with a cutting edge or point. Of course, this cutting edge or point need not be that
of a metal object such as a knife or spear, or indeed a bullet;a wound can equally be
inflicted by a sharpened stone or stick."

In Lengwe (1) we held that injuries inflected with a hammer and spanner were not wounds
within the definition; the same reasoning is entirely in point in the present case. As Mr
Kinariwala very properly concedes, the conviction for unlawful wounding cannot therefore
stand.

On the facts of this case the accused persons could well have been charged with aggravated
assault contrary to s. 295 of the Penal Code, and certainly should have been charged at the
very least with assault occasioning actual bodily harm contrary to s. 248 of the Penal Code.
It is not however open to this court to substitute convictions under either of these sections
in place of the incorrect conviction for unlawful wounding because both those other offences
are more serious than the offence of which the applicant was convicted. The case of Lengwe
dealt with that point also; we said in precisely similar circumstances that the only conviction
possible by way of substitution was one for common assault. It is with the greatest regret
that we are forced to this conclusion, because this was a very serious offence and the
maximum penalty for common assault, is quite inadequate.

The application so far as it relates to both conviction and sentence is allowed and the
hearing will he treated as the hearing of the appeal. The conviction for unlawful wounding is
set aside and a conviction for common assault contrary to s. 247 of the Penal Code is
substituted. The sentence is also set aside and in its place there will be substituted the
maximum sentence under the section, namely, one year's imprisonment with hard labour
from the date of conviction, the 18th of May, 1977.

Conviction substituted

GEORGE WAMUNDILA v THE PEOPLE (1978) Z.R. 151 (S.C.)

SUPREME COURT
BARON, D.C.J., GARDNER AND BRUCE-LYLE, JJ.S.
11TH APRIL,1978
(S.C.Z. JUDGMENT NO. 18 OF 1978)

Flynote

Evidence- Witness - Witness with purpose of his own to serve - Whether faith in honesty of
witness based only on demeanour and plausibility of story sufficient for conviction.

Headnote

The applicant was convicted of housebreaking and theft, the allegation being that he broke
into a house and stole a tape recorder and fifteen long playing records. The principal
evidence was that of two witnesses whom the trial magistrate correctly held should be
treated as accomplices; he warned himself that their evidence would require corroboration.
The magistrate found that there was no corroboration but expressed himself to be satisfied
that the witnesses were telling the truth.

Held:
Where there is no corroboration of the evidence of an accomplice or of a witness with
an interest of his own to serve, it is not safe to convict on that evidence unless there
is some reason for accepting it other than a belief in the truth of the evidence based
simply on the demeanour of the witness and the plausibility of his evidence.

Phiri and Ors v The People (1) applied.

Case cited:
(1) Phiri and Ors v The People S.C.Z. Judgment No. 1 of 1978.

For the applicant: In person.

For the respondent: Mrs I.C. Mambilima, State Advocate.

Judgment

GARDNER,J.S.: delivered the judgment of the court.

The applicant was convicted of housebreaking and theft, the particulars of the charge being
that he broke into a house and stole a tape recorder and fifteen long playing records.

PW2 gave evidence that he received two records from the applicant who offered to sell
them. He passed on one of the records to PW3 with a view to making a sale and kept the
other record himself. PW3 said that he had seen the applicant with a number of long playing
records in his possession and the applicant offered to sell some of them to him, but as he
had no money he was unable to buy them and the applicant suggested that he should see
PW2 who had two of the records. Subsequently, PW2 brought him one of the two records
which was found in his possession when the police investigated the matter.

The police evidence was to the effect that the applicant's house was searched and nothing
incriminating was found, and that when charged with the offence the applicant denied the
charge. The applicant gave evidence on his own behalf again denying any knowledge of the
records.

The magistrate warned himself that as two of the stolen records were found in the
possession of PWs 2 and 3 they should be treated as accomplices so that their evidence
would require corroboration. However, although the magistrate in his judgment found that
there was no corroboration he went on to say:

"I am sure the two witnesses were accomplices who were innocent receivers who
had nothing to hide from the court. I am satisfied that they told me nothing but the
truth."

As we said in the case of Emmanuel Phiri v The People (1), where there is no corroboration
of the evidence of an accomplice or of a witness with an interest of his own to serve, it is
not safe to convict on that evidence unless there is some reason for accepting it other than
a belief in the truth of the evidence based simply on the demeanour of the witness and the
plausibility of his evidence. If, as we said, there be nothing more the court must acquit. We
went on to say:

"The something more must be circumstances which, though not constituting

corroboration as a matter of strict law, yet satisfy the court that the danger that the
accused is being falsely implicated has been excluded and that it is safe to rely on the
evidence of the accomplice implicating the accused."

In this case there was no evidence to support the uncorroborated evidence and there were
no circumstances which could make it safe to rely on the uncorroborated evidence. The
applicant should not have been convicted.

The application is granted and treated as the appeal. The appeal is allowed, the conviction is
quashed and the sentence is set aside.

Appeal allowed

IN THE MATTER OF TAW INTERNATIONAL LEASING CORPORATION AND IN THE

MATTER OF THE COMPANIES ACT, CAP. 686 (1978) Z.R. 152 (H.C.)

HIGH COURT
SAKALA, J.
19TH APRIL, 1978
(1977/HP/809)

Flynote

Company - Winding-up - Grounds - Inability to pay debts - Definition of "unable to pay

debts" - Companies Act, Cap. 686, s. 138.

Company- Winding-up - Grounds - Inability to pay debts - Debts disputed - What must be
established - Whether a court will make an order.
Company - Winding-up - Inability to pay debts - Debts disputed substantially - Dispute
within the knowledge of the Parties - Whether an abuse of process of court.

Headnote

The company registered in a foreign country, was registered in Zambia under the
Companies Act, Cap. 686. The petitioners petitioned for the winding-up of the company on
the grounds that the company was unable to pay its debts under an agreement and a
judgment entered in a foreign country. The company contended that it was solvent in
Zambia and was in a position to pay its debts in Zambia; and that it had no indebtedness
currently due and payable to the petitioner as the debts due were disputed on substantial
grounds in the country in which they originated.

Held:
(i) Inability to pay debts must refer to debts which are absolutely due i.e. debts
 for which a creditor may go at once to the company's office and demand
payment. In Zambia the term "unable to pay debts" is defined under s. 138 of
the Companies Act, Cap. 686.

(ii) Where a petition to wind-up a company is based on inability to pay debts, the
petitioner must also show that the debt is due and payable. A winding-up
order will not be made on a debt which is disputed in good faith by the
company. The dispute has to be based on substantial grounds and reasonable
and specific grounds must be given. A mere assertion of a dispute is not
sufficient.

(iii) When a debt claimed is bona fide disputed a winding-up petition is not a
proper course for enforcing it.

(iv) To invoke the winding-up jurisdiction when a debt is disputed on substantial

grounds after it had become clear that it was due, is an abuse of the process
of court.

Cases cited:

(1) Re Ghelani Imprex Ltd [1975] E.A. 197.

(2) Re Imperial Hydropathic Hotel Co. (1882) 49 L.T.147.
(3) Re Tweeds Garages Ltd [1962] 2 W.L.R. 38.
(4) Re Douglas Griggs Engineering Ltd [1962] 2 W.L.R. 893.
(5) Mann and Another v Goldstein and Another [1968] 1 W.L.R. 1091].
(6) Niger Merchants Company v Copper 18 Ch.D. 557 & 559.
(7) Re Bryant Investment Co. Ltd [1974] 1 W.L.R. 826.
(8) Re L.H.F. Woods Ltd [1969] 3 ALL E.R. 591.

Legislation referred to:

Companies Act, Cap. 686, ss. 138, 227 (2), 227 (2) (a) (ii).

For the petitioner: E J. Shamwana, SC, with M. Lwatula, A.M. Kasonde, Acting Principal
State Advocate
For the respondent: S.S. Zulu of Zulu & Company.

Judgment

SAKALA,J.: in the portion of his judgment relevant to this report said.

I said earlier in this judgment that the company's indebtedness to the petitioner and the
other creditors is not in dispute. This fact was acknowledged by the company in the
composition agreement as well as in the evidence before this court. The main question for
determination therefore can be framed as follows:
Is the respondent's admitted indebtedness to the petitioner presently due and payable? If
so - has the company been unable to pay to entitle the petitioner to a winding-up order?

The admitted indebtedness arises from two different circumstances, namely, a loan by the
company from the Prudential Insurance Company of America and damages as a result of a
court action between the company and the petitioner in an action commenced by the
company and the others against the petitioner. One thing common to these two debts is
that they all have something to do with the composition agreement. It is therefore not
surprising that all the main arguments and submissions in this case have been centred on
the relevant provisions of the Agreement. It is also convenient to mention at this point that
the indebtedness arising out of a loan was due and payable in 1984 had the agreement not
been terminated.

Mr. Shamwana, for the petitioner argued that the company committed several breaches
under the agreement, some of which were admitted by Mr Wood himself. He submitted that
as a result of these breaches the creditors were entitled to terminate the agreement. He
contended that the agreement was properly and justly terminated after two years
forbearance by the creditors. He submitted that upon termination the debt described in the
agreement became due and payable. He further submitted that the respondent having failed
to make payments for two years under the agreement the requirements of s. 138 (a) of
Cap. 686 are fulfilled and the company is unable to pay its debts within the meaning of s.
138 (c) of Cap. 686.

Mr Zulu on behalf of the respondent meets the above submissions by submitting that at law
the respondent may not be wound-up because the alleged indebtedness is not currently due
and payable. His contention being that the agreement was wrongfully terminated hence the
forbearance provisions of the agreement still stand. He contended that it is a fundamental
principle of law that one who repudiates a contract may not enjoy the benefits of his
wrongful act.

It was also submitted on behalf of the petitioner that according to s. 16.3, the composition
agreement could only be amended with written consent of the creditors' committee and any
waiver had to be in writing. It was contended on behalf of the petitioner that failure to make
reports was an ample and valid ground to terminate the agreement and that the respondent
was never forced to perform any illegal act under the agreement since the payment
provision in the agreement was not illegal. It was further argued on behalf of the petitioner
that problems of exchange control do not afford a defence.

On behalf of the company the contention is that the debt is not currently due and payable.
It was also argued on behalf of the company that the dispute between Taw and the
petitioner is of breach of contract, consequently this court sitting in a winding-up petition is
not a proper court to determine the issue of breach of contract. The issue has to be
determined by a New York court.

The petition is based on the ground of inability to pay debts. The contention of the
petitioner is that there is no real substantial dispute with regard to the debt. On the other
hand the respondent's contention is that the debt is not due and payable. In re European
Life Assurance Society (1) Sir W. M. James, V.C., had this to say at p. 127:

"I think that the Petitioners have not made out a case at all in any sense of inability
to pay debts within the meaning of the Act of Parliament. I apprehend that Mr Glasse is
right in his construction, that inability to pay debts must refer to debts absolutely due - that
is to say, debts for which a creditor may go at once to the Company's office and demand
payment."

In s. 138 the Companies Act sets out the circumstances when a company is deemed unable
to pay its debts as follows:
 "A Company shall be deemed to be unable to pay its debts -
(a) Whenever a creditor, to whom the Company is indebted in a sum exceeding
one hundred kwacha then due, has served on the Company, by leaving the same at the
registered office, a demand under his hand requiring the Company to pay the sum so due,
and the company has for the space of three weeks succeeding the service of such demand
neglected to pay such sum, or to secure or compound for the same to the
satisfaction of the creditor;
(b) Whenever execution or other process issued on a judgment, decree, or order
obtained in any Court in favour of any creditor, in any proceeding instituted by such creditor
against the Company is returned unsatisfied in whole or in part;
(c) Whenever it is proved to the satisfaction of the Court that the Company is
unable to pay its debts, and in determining whether a Company is unable to pay its debts
the Court shall take into account the contingent and prospective liabilities of the Company."

It would appear from many decided cases that the only defence open to the company is to
show that the debt claimed is bona fide disputed, in which case a winding-up petition is not
a proper course of enforcing it.

Paragraph 1004 of Halsbury's Laws of England, 4th Ed., Vol. 7 under the heading - Who
may not petition - makes references to various authorities where a winding-up order has
not been granted on the ground that the debt has been disputed in good faith. The last part
of that paragraph reads as follows:

"A winding up order will not be made on a debt which is disputed in good faith by the
Company; the Court must see that the dispute is based on a substantial ground. A dispute
as to the precise amount due is not a sufficient answer to the petition. If there is a genuine
dispute, the petition may be dismissed or stayed."

It would appear to me that mere assertion of a dispute is not enough. From decided cases
the emphasis appears to be that the bona fide dispute must be substantial. In re Ghelani
Imprex Ltd (1) the Court of Appeal observed at p. 200 as follows:

"No suggestion that the debt was disputed was made until after the petition was
presented, when a director of the Respondent Company, in his affidavit in reply to the
petition, described the debt as an 'alleged' debt, and stated that the debt was disputed in
the pending suits. The grounds of dispute are not stated, they may for all I know be purely
technical. There is no way of judging whether they are bona fide or substantial. If they are,
I would have expected them to have been put forward at a much earlier stage. The mere
assertion that the debt is disputed will not do, reasonable and specific grounds of dispute
must be given. (Re imperial Hydropathic Hotel Co. (2)."

In that case the Court of Appeal allowed the appeal against the order of the High Court
refusing the grant of a winding-up order.

A dispute as to the precise amount due once the debt has been acknowledged is not an
answer to a petition. (See in re Tweeds Garages Ltd (3).) In re Douglas Griggs Engineering
Ltd (4) on the facts of that case the court among others held that:

"That the petitioning creditor, having obtained a judgment and being possessed of all
the remedies of a judgment creditor, was prima facie entitled to a winding-up order against
the respondent Company, and that prima facie right was not to be displaced merely by
showing that the respondent Company had a disputed claim against the petitioning creditor
which was the subject of litigation in other proceedings."

The question of a debt disputed on substantial grounds was dealt with at some length by
Ungoed - Thomas, J, in Mann and Another v Goldstein and Another (5). Briefly the plaintiffs
sought an injunction to restrain the defendants from advertising or taking any further steps
in the prosecution of their respective petitions on the grounds that the defendants were not
creditors at all, or alternatively, that their debts were disputed on substantial grounds, that
the petitions were not bona fide but an abuse of the process of the court and that the
companies were solvent. Among others the court held:

"That even though it appeared from the evidence that the Companies were insolvent,
as the debts were substantially disputed the defendants ought to be restrained from
proceedings on their petitions.
That to invoke the vinding-up jurisdiction when a debt was disputed on substantial
grounds after it had become clear that it was so disputed was an abuse of the process of the
Court."

In that case the defendants relied on the observation of Sir George Jessel, M.R, in Niger
Merchants Co. v Copper (6) that:

"Where a Company is insolvent no doubt it is reasonable to wind up the Company,

even where the debt is disputed."

Commenting on this observation, Sir Ungoed - Thomas, J., in Mann's case (5) supra at p.
1095 has this to say:

"But this statement is tentatively phrased in an apparently unreserved judgment

unreported at the time in the early period of the development of the jurisdiction, and, so far
as I know, stands alone. Of course, judges, with due regard to the facts of the particular
cases before them, have, naturally, referred to the company's solvency or insolvency, as
the case may be, as emphasising the desirability of their dismissal of an application to
restrain winding-up proceedings or of granting an injunction to restrain such proceedings,
as the case might be. But there is no authority, so far as I have been able to ascertain, to
support the suggestion that a Company might he wound up on a creditor's petition where
the Company is insolvent though the debt upon which the petition is founded is disputed. It
seems to one to be neither in accordance with the requirements of the Companies Act, nor
the practice recognised by Lord Greene M.R and I do not consider it justifiable to treat Sir
George Jessel's observation as other than the incidental and tentative observation which it
appears to me to be."

At p. 1098 he had this to say:

"But the Companies Court, in accordance with the practice which I have mentioned,
does dismiss a petition founded on substantially disputed debt whose validity it cannot
conveniently decide even though the Company be insolvent."

The law as I understand it is that where a petition to wind a company is based on inability
to pity debts, the petitioner must also show that the debt is due and payable. (See re
Bryant Investment Co. Ltd (7).) On the part of the respondent the possible defence is to
sheen that: the debt claimed is disputed. The dispute must be based on stated reasonable
and specific rounds. The mere assertion of the dispute is not enough (re Ghelani Imply Ltd
supra). Whether a winding-up order will be made on a petition based on a judgment debt
where there was a genuine cross claim against the petitioning creditor is matter for the
judge's discretion (re L.H.F. Woods Ltd (8)).
In his evidence Mr Wood who testified on behalf of the company gave the impression that
the company was pressurised into signing; the composition agreement in that the company
had a choice of either going into bankruptcy or signing the agreement. He testified that they
disagreed with many of the terms of the agreement. On the evidence before me I am not
prepared to accept this contention. It would appear to me that the company having
defaulted on the notes, the creditors would have been perfectly entitled to take up the
winding-up proceedings against the company. This they did not do. Instead the creditors
and the company entered into this composition agreement. There can therefore be no doubt
that the composition agreement was a better alternative to the company than bankruptcy.
In those circumstances it cannot be seriously contended, that the company was under
pressure to sign the agreement. I am satisfied and I find as a fact that the company having
found itself unable to pay the debts freely entered into the composition agreement as the
best alternative.

In this agreement all the parties concerned agreed that it will be governed and construed in
accordance with the law of the State of New York. (See Section 16.7.) On the other hand
this court is called upon to determine a petition for winding-up order based on
indebtedness which is the subject of an agreement governed and to be construed according
to the law of the State of New York. Be that as it may, I have already said, and I am
satisfied that this court in terms of our law has jurisdiction to windup this company. It will,
however, be observed that this petition is based on a special debt. Special in the sense that
the terms, conditions, and methods of payments are governed by specific provisions of the
agreement. Hence whether the debt is due and payable and whether the company is
unable to pay its debts inevitably depends on the interpretation to be placed on the
specific provisions of the agreement.

On a consideration of the evidence as a whole, I am satisfied that while the creditors would
have perfectly been entitled to proceed against the company prior to the composition
agreement, the position was altered after the agreement. Under the agreement the
indebtedness and inability to pay the same was acknowledged. But on the part of the
creditors they were, under the agreement, to forbear from exercising their rights as
creditors unless and until the agreement was terminated.

There is evidence on behalf of the company, which appears not disputed by the petitioner
that the company complied with the requirements of the agreement up to 31st October,
1975. The petitioner and the other creditors terminated the agreement by a letter dated
13th January, 1977, on the grounds that the company failed to make the minimum
quarterly payments and the monthly reports. Under the agreement the company had to
make payments through the restricted bank accounts which were set up in all the countries
where the company operated. (Section 6.2.) The monthly reports had to be delivered to the
observer or creditors committee. Mr Wood's evidence is that after the 31st October, 1975,
the company did not make any payments into the restricted bank accounts. He went further
to say that at a later stage the company withdrew the money that was in these accounts.
He also said no monthly reports were delivered after that date. Clearly this suggests that
after that date the company was in default.

At this stage it is perhaps convenient to ask a preliminary but relevant question - Why did
the petitioner and the other creditors wait until 13th January, 1977, to terminate the
agreement? Without making any decision on the petition itself at this stage, it would appear
to me that the petition as well as the evidence in support do not assist in answering the
question posed. On the other hand there is evidence of Mr Wood and the documents
produced on behalf of the company clearly suggesting that the interpretation of the
provisions of the composition agreement, in particular Section 6.2, before and after the 31st
October, 1975, was subject of much discussion at meetings between the parties concerned
and a good deal of correspondence exchanged hands. (See for instance Taw 31, 30 and 29
in that order.) Further there is the documentary evidence in Taw 3 which clearly suggests
that the legality of the payment provisions under the composition agreement were being
hotly contested. I am therefore satisfied hat all these matters had a bearing on the
agreement and in my view explain why the termination was in January, 1977. There is in
addition evidence that the Taw Companies had earlier commenced proceedings to restrain
the creditors from terminating the composition agreement alleging violations of various
African exchange control laws.

The agreement was terminated on two grounds - minimum quarterly payments and monthly
reports. Mr Wood's evidence is that the company did not set up the restricted bank
accounts. They made payments into these accounts and repatriated the funds in accordance
with the agreement. But on realising, after consultation with experienced counsel in the
various countries, that payments into these accounts violated the African exchange control
laws, they stopped making the same.

On the question of delivering monthly written reports the company's contention is that after
the creditors withdrew the observer it was physically impossible to comply with the
provision under the agreement. It has been contended on behalf of the company that the
question whether the debt is due and payable depends on whether the composition
agreement was rightly terminated.

On the evidence before me I cannot say that the documents marked Taw 29, 30 and 31
amended the agreement to place the obligations of establishing the restricted bank accounts
on the creditors. I am satisfied and find as a fact that the restricted bank accounts were
established by the Taw Companies. But on the evidence before me I cannot say with
certainty as to who owned those accounts especially when one takes into account that
payment into those accounts was according to Mr Von Mehren deemed to be payment
towards the debt. I will comment later on the ownership of the money in the restricted bank
accounts.

The petitioner also commenced proceedings to wind-up the company in Kenya. It will be
observed that the petition in the Kenyan proceedings was based on the same indebtedness
and on the same grounds for the termination of the composition agreement. The Kenyan
High Court rejected the petition. The learned trial judge in that case observed, that the
company had sufficiently challenged the debt and felt that more harm than good would
result in winding-up the company. Mr Von Mehren on behalf of the petitioner, testified that,
that judgment was irrelevant to the instant petition. I must point out in the first place that,
that judgment although persuasive is not binding on this court. But with due deference to
Mr Von Mehren I cannot say that the Kenyan judgment (Taw 6) is irrelevant, to the present
petition. In my considered opinion the Kenyan judgment is on all points relevant and
applicable to the present petition. In any event there is now additional evidence before this
court namely that the New York default judgment has been challenged and according to Mr
Wood as at the time of the hearing of the petition the New York judgment had been
suspended. This evidence was not before the Kenyan High Court.

This is petition to wind-up the company on the ground that the debt which is now disputed
has not been satisfied. The defence is that the debt is not due and payable. The contention
being that there its a real and substantial dispute to the debt. With profound respect to the
learned submissions by both learned counsel, after a consideration of the whole evidence I
find that in resolving the issue whether the debt is due and payable, it is not for this court
to deal with the issue of breach of contract especially taking into account that this issue is
currently under litigation in the Supreme Court of the State of New York. Whether the
company will succeed is in my opinion not a matter for this court at least for purposes of
these proceedings.

For my part I am satisfied and accept that the issue of breach of contract is currently under
litigation. I also accept that the New York default judgment was suspended pending the
hearing of the petitioner's motion and Taw's cross-motion. I am further satisfied and find as
a fact that the company refused to comply with the petitioner's directives to make payments
to them because Taw strongly believed these payments to be in violation of the exchange
control laws in the various African countries. I find it unnecessary to make a finding as to
who had to obtain permission to repatriate funds in the restricted bank accounts. But suffice
it to say that the controversy in Zambia appears to have led to interpleader proceedings
resulting in the disputed money in the restricted bank account in Zambia being deposited
into court pending determination of the rightful claimant. But whatever views one takes on
whether the creditors could have terminated the agreement on this issue alone is not the
issue at his point in time. The company has in my view adduced sufficient evidence both
oral and documentary that the termination of the agreement is in dispute and there is
litigation now pending.

For my part it is a matter for comment why the petitioner considered it more practical to
bring this petition in Zambia. This is not to say in law they could not. But considering that
the debt was not incurred in Zambia, the agreement was to be governed according to the
law of New York State, and also taking into account that there is already litigation in the
courts of the State of New York involving the same parties and the same agreement, it
would appear to me that the appropriate, convenient and practical forum in which to
present this petition would have been in the courts of the State of New York. Mr Von Mehren
himself said that the creditors are not looking to the proceeds of the arbitration for
payment. Although this piece of evidence is not borne out by the provisions of the
composition agreement which specifically provided for the arbitration proceedings, one is
still constrained to ask the question: Why was Zambia considered suitable for petitioning the
company then?

It is also a matter for observation that the allegation of violation of exchange control by the
company appeared to have been an issue which was within the knowledge of the petitioner
and other creditors at quite an early stage of the agreement yet they insisted on payment
without resolving the issue which in my view would have been the simplest and cheapest
thing to do considering that the company complied at least initially with the provisions of
the agreement.

After a careful consideration of the whole evidence before me I am in no doubt that the
company is as per composition agreement indebted to the petitioner and other creditors.
This indebtedness was acknowledged by the company which also acknowledged its inability
to pay it. I am satisfied that as per provisions of the agreement, the creditors taking into
account the circumstances and the amount of the debt and the position of the company,
deliberately agreed to waive their right to petition until the composition agreement was
terminated. The petitioner and the other creditors terminated the agreement. The company
disputes the termination.
From the various authorities cited in my judgment, my understanding of the winding-up
proceedings is that they are not intended as a means of enforcing the payments of debts
bona fide disputed by the company. For my part I do not consider that, this court can
conveniently resolve the hotly contested issue of wrongful termination of the composition
agreement through the winding-up procedure even assuming that the company is insolvent.
I would venture to say that arguable and triable issues in a winding-up petition should not
in my view be resolved by windng-up procedure.

In the result, applying the law as analysed in my judgment I find that on the balance of
probabilities the company has established that both the principal debt and the judgment
debt on which the petition is based as of now are disputed. I am satisfied that the dispute is
based on reasonable and specific grounds and not merely on assertion. In the circumstances
even taking into account the wishes of the vast majority of the creditors I cannot, as of
now, say that the indebtedness to the petitioner and other creditors is due and payable and
the company is unable to pay to entitle the petitioner to a winding-up order. Taking into
account the nature of the dispute to the claim I consider that the petition should be
rejected. Accordingly the petition is rejected with costs.

Petition rejected

MAXWELL NYAMBE SIKWETI v THE PEOPLE (1978) Z.R. 162 (S.C.)

SUPREME COURT
BARON, D.C.J., GARDNER AND BRUCE-LYLE, JJ.S.
25TH APRIL, 1978
(S.C.Z. JUDGMENT NO. 19 OF1978)

Flynote

Criminal law and procedure - Allegation of irregularities by trial court - Allegations not
supported by record or separate Affidavit.

Headnote

The applicant pleaded guilty in the subordinate court to stock theft. In the High Court the
applicant alleged that the magistrate had more or less bullied him into pleading guilty, and
in the Supreme Court he alleged that he had been beaten by the police. There was nothing
on the record which could support either allegation.

Held:
An appellate court will not entertain allegations against trial magistrates and judges
for which there is no support in the record and which are not supported by affidavit
but simply made verbally in argument.

For the applicant: In person.

For the respondent: Miss G.T. Moruthane, State Advocate.

Judgment

BARON, D.C.J.: delivered the judgment of the court.

The appellant pleaded guilty in the subordinate court to stock theft. In his submission to this
court he says that he was beaten for five days by the police till he finally admitted the
offence, and that when he complained to the magistrate the prosecutor said that he had
been beaten not by the police but by the complainant.

When the matter came before the High Court on the first appeal the learned commissioner
said in his judgment that the applicant alleged that the magistrate had more or less bullied
him into pleading guilty. That was quite a different allegation from the one the applicant
now makes in this court. In dealing with that allegation the learned commissioner said this:

"There is nothing on the record to support this allegation. This is a serious allegation
to make against the trial magistrate and this court has said in several cases before that
allegations against magistrates which are not supported by the record will not be
entertained without more. Appellants making such allegations must put them in an affidavit
to which the State can obtain affidavits in reply."

We wish to affirm and underline these comments of the learned commissioner in the High
Court. This court also has on many occasions said that we will not entertain allegations
against trial magistrates and judges for which there is no support in the record and which
are not supported by affidavit but simply made verbally in argument. We have had occasion
to say this very morning that we will not go behind the record simply on allegations made in
argument and without any support.

The sentence was in no sense excessive and this application is therefore refused.
Appeal dismissed

BABULAL JOITRAM SHARMA v ATTORNEY- GENERAL (1978) Z.R. 163 (S.C.)

SUPREME COURT
BARON, D.C.J., GARDNER AND BRUCE LYLE, JJ.S.
17TH JANUARY, AND 3RD APRIL, 1978
(S.C.Z. JUDGMENT NO. 13 OF 1978)

Flynote

Constitutional law - Detention without trial - Detention by police officer under regs. 33 (6) of
Preservation of Public Security Regulations - Whether provisions of Art. 27 of Constitution
must be complied with.
Constitutional law - Detention without trial - Successive detention under regs 33 (6) and 33
(1) of Preservation of Public Security Regulations Whether one continuous detention.
Costs - Habeas corpus - Detention without trial under emergency powers - Point of
general importance being raised for first time.

Headnote

The appellant, was detained on the 9th July, 1977, under reg. 33 (6) of the Preservation of
Public Security Regulations (the Regulations). On the 5th August, 1977, he was served with
a document purporting to revoke that detention and immediately thereafter was served with
detention order under reg. 33 (1). On the 18th August an ex parte application was made for
the issue of a writ of habeas corpus; grounds for the detention as required by Art. 27 of the
Constitution were served on that day.

It was argued on behalf of the appellant that the provisions of Art. 27 of the Constitution
applied to a detention under reg. 33 (6) just as they applied to a detention under reg. 33
(1), that the failure to furnish grounds for the former detention within fourteen days of its
commencement rendered continued detention thereafter unlawful, that the detentions under
the two orders were in fact and must be treated in law as one continuous detention, and
that the detention under reg. 33 (1) was therefore unlawful. It was argued on behalf of the
respondent that there is no requirement to furnish grounds for the detention under reg. 33
(6) and that that detention was lawful throughout; it was argued further that in any event
the subsequent detention under reg. 33 (1) was separate and distinct and not a
continuation of the first detention.

Held:
(i) Although they relate broadly to the same subject matter, grounds for
detention under reg. 33 (6) are not the same as grounds for detention under
reg. 33 (1); when a person is detained pursuant to reg. 33 (6) the provisions
of Art. 27 of the Constitution must be complied with.

(ii) Regulations 33 (6) and 33 (1) and the resulting detentions thereunder are
quite distinct; the detaining authorities, the purposes of the detention, and
the periods of permissible detention are all different. The detention under reg.
33 (1) cannot be attacked on the basis of any unlawfulness in the detention
under reg. 33 (6).

(iii) It would not be in the interests of justice that persons detained without trial
under exceptional powers should be deterred from raising reasonable legal
points as to the validity of their detention by fear of the costs that might be
incurred; although the court found no great difficulty in the points of law in
issue, one of them was a constitutional point of general importance being
raised for the first time.

Dictum of Doyle, C.J., in Kapwepwe and Kaenga v A.-G. (3) cited with
approval.

Cases cited:

(1) Chipango v Attorney-General (1971) S.J.Z.55.

(2) State of Bombay v Atma Ram Vaidya A.I.R. (1951) S.C. 157.
(3) Kapwepwe and Kaenga v Attorney-General (1972) Z.R. 248. 20
(4) In re Cain (1974) Z.R. 71.
(5) Seegers v Attorney-General (1976) Z.R. 117.

Legislation referred to:

Constitution of Zambia, Arts 26, 27, 30.

Preservation of Public Security Regulations, regs 33 (1), 33 (6).
For the appellant: A.P. Annfield, Annfield and Sikatana.
For the respondent: A.M. Kasonde, Senior State Advocate.

Judgment

BARON, D.C.J.: This is an appeal from a decision of the High Court dismissing an application
for a writ of habeas corpus ad subjiciendum. The appellant was detained on the 9th July,
1977, under reg. 33 (6) of the Preservation of Public Security Regulations (to which I will
refer hereafter simply as the Regulations, and to individual regulations simply by their
numbers) which reads:

"33. (6) Any police officer of or above the rank of Assistant Inspector may, without
warrant arrest any person in respect of whom he has reason to believe that there are
grounds which would justify his detention under this regulation, and may order that such
person be detained for a period not exceeding twenty eight days pending decision whether a
detention order should be made against him, and the provisions of sub-regulation (5) shall
apply in respect of his detention during such period:
Provided that person arrested under this sub-regulation shall be released where,
before decision is reached as to whether or not a detention order should be made against
him, the police officer who arrested him finds, on further inquiry, that there are no grounds
which would justify his detention under this regulation. "

On the 5th August, 1977, the appellant was served with a document purporting to revoke
that detention and immediately thereafter was served with a detention order, signed by his
Excellency the President, under regulation 33 (1) which reads:

"33. (1) Whenever the President is satisfied that for the purpose of preserving public
security it is necessary to exercise control over any person, the President may make an
order against such person, directing that such person be detained and thereupon such
person shall be arrested, whether in or outside the prescribed area, and detained."

On the 18th August an ex parte application was made for the issue of a writ of habeas
corpus which was heard in open court on the 24th August; grounds for the detention as
required by Art. 27 of the Constitution were served on the 18th August.

For convenience I will refer to detention under reg. 33 (6) as "police detention", and to
detention under reg. 33 (1 ) as "Presidential detention".

Articles 26 and 27 of the Constitution read, so far as is relevant:

"26 Nothing contained in or done under the authority of any law shall be held to be
inconsistent with or in contravention of Article 15 . . . to the extent that it is shown that the
law in question authorises the taking, during any period when the Republic is at war or
when a declaration under Article 30 is in force, of measures for the purpose of dealing with
any situation existing or arising during that period; . . .
27. (1) Where a person's freedom of movement is restricted, or he is detained,
under the authority of any such law as is referred to in Article 24 or 26, as the case may be,
the following provisions shall apply:

(a) he shall, as soon as is reasonably practicable and in any case not more than
fourteen days after the commencement of his detention or restriction, be furnished with a
statement in writing in a language that he understands specifying in detail the grounds upon
which he is restricted or detained,
(b) not more than one month after the commencement of his restriction or
detention a notification shall be published in the Gazette stating that he has been restricted
or detained and giving particulars of the provision of law under which his restriction or
detention is authorised; . . ."

Mr Annfield, on behalf of the appellant, submits that the provisions of Art. 27 apply to a
police detention just as they apply to a Presidential detention, that the failure to furnish
grounds for the police detention within fourteen days of its commencement, on the
authority of Chipango v Attorney-General (1), rendered continued detention thereafter
unlawful that the detentions under the two orders were in fact and must be treated

in law as one continuous detention, and that what he termed the defect in the police
detention was not capable of being cured by the subsequent service of documents. Mr
Kasonde, on behalf of the respondent, submits that the police detention was lawful and
remained so until its revocation and the service of the Presidential detention order, and that
in any event the latter detention was separate and distinct and not a continuation of the
police detention. He submits in terms that where the police act under reg. 33 (6) there
cannot be any requirement to furnish grounds because at that stage the police are
investigating whether grounds for detention exist.

It cannot seriously be argued that the expressions "any law" and "any such law" in Arts 26
and 27 of the Constitution refer to complete statutes or statutory instruments; it is trite that
sections and sub-sections of Acts of Parliament and statutory instruments, whilst they are to
be construed in the context of the entire piece of legislation and indeed in the context also
of other legislation in pari materia, are separate enactments. Hence, "any law" and "any
such law" refer not to the Regulations as a whole but to the individual regulations and
sub-regulations in question, each of which is such a law. Each of them authorises, for its
different purposes, during any period when the Republic is at war or a declaration under Art.
30 of the Constitution is in force (relating to emergencies or threatened emergencies), the
deprivation of a man's liberty without trial, and during such deprivation the safeguards set
out in Art. 27 must apply. I cannot accept Mr Kasonde's argument that, because the
detention is for the purpose of investigating whether grounds exist for a Presidential
detention order, it would be premature to furnish such grounds in relation to a police
detention; there must be grounds for that detention itself. In terms of reg. 33 (6) a person
cannot be arrested and detained unless a police officer of the required rank has reason to
believe that grounds exist for a Presidential detention order; in other words, the police
officer in question must have grounds to suspect that the grounds for a Presidential
detention order exist. Although they relate broadly to the same subject matter these two
sets of grounds are not the same; if the police officer suspects, on information received or
because of past activities of the person concerned, that a person if left at liberty might
engage in activities prejudicial to the security of the State, he must of necessity be able to
state the basis of his suspicion. I can see no difficulty in setting out sufficient information to
enable the detained person to know what is suspected and to make a representation to the
detaining authority which, as Kania, C.J., put it in State of Bombay v Atma Ram Vaidya (2),
"on being considered may give relief to the detained person", or as Doyle, C.J., put it in
Kapwepwe and Kaenga v Attorney-General (3), "to enable the detainee to make an
adequate representation", or as I put it in the same case, "a meaningful representation".
This test must always be the over-riding principle. A person detained without trial must be
given the opportunity to make representations to the detaining authority on the basis of
alibi or mistaken identity as well as on the merits, and I refer to what I said in this regard in
the Kapwepwe and Kaenga case (3) at p. 262; it would, for instance, be a gross injustice if
a person who was suspected of having said certain things at a public meeting at a
particular place and on a particular date should be deprived of his liberty for up to
twenty-eight days notwithstanding that he could prove that on the date in question he was
on the other side of the world and that he had been detained because of a confusion in
names.

The dichotomy of the two sets of grounds is underlined by the fact that if as a result of the
investigation the original suspicion proves to be ill-founded but different grounds emerge
the police detention does not for that reason become unlawful; nor could a Presidential
detention on the later grounds be challenged on the basis that they differ frown the grounds
of the police detention - a point material also on the issue of whether the two detentions
were in reality one continuous detention.

During the argument reference was made to the definition of a detention order in reg. 3;
the suggestion appeared to be - although not advanced with any great enthusiasm - that
because "detention order" is defined as an order made under the provisions of sub-reg. (1)
of reg. 33 the provisions of Art. 27 of the Constitution do not apply to a detention under
sub-reg. (6). The short answer to this argument is that Art. 27 refers to the provisions
which will apply where a person "is detained"; quite apart therefore from the fact that the
expression "detention order" has been defined simply for convenience and as a drafting
technique, if the Regulations in fact purported to place a restricted meaning on the word
"detained" such restriction would be ultra vires the Constitution.

I am satisfied therefore that when a person is detained pursuant to reg. 33 (6) the
provisions of Art. 27 of the Constitution must be complied with.

I turn then to the second point in this appeal, namely, whether the applicant's detention
was one continuous detention from the 9th July. Mr Annfield's submission is that, the court
having decided that the police detention became unlawful after the expiration of fourteen
days from its commencement, that detention could not be rendered lawful by "sub sequent
service of documents". Chipango (1) decided that even though the failure to furnish grounds
was due simply to an oversight, nevertheless such failure rendered further detention
unlawful and that such further detention remained unlawful notwithstanding that the
grounds were in fact furnished very shortly after the expiration of the statutory period.
Clearly therefore the unlawfulness could not be cured in that way. But Mr Annfield's use of
the expression "service of documents" begs the question; if the revocation order and
Presidential detention order were simply documents served in order to comply out of time
with constitutional requirements relating to the police detention, then his argument would
be unanswerable; but if in fact the Presidential detention was a separate and distinct
detention it was not unlawful by reason of the failure to furnish the grounds for the police
detention.

It is convenient to deal at this point with the document revoking the police detention order.
The point is perhaps academic, but I venture to doubt whether there is any necessity for a
written order directing the detention of the person concerned, and I have even greater
doubts whether there is any power to revoke any such order, whether written or verbal.
What is quite clear, however, is that revocation is unnecessary. The proviso to reg. 33 (6)
says that where, before a decision is reached as to whether or not Presidential detention
order should be made, the police officer in question finds that there are no grounds which
would justify the making of such an order, the person shall be released; it follows that the
moment a decision is made not to make a Presidential order the person must be released,
while if a decision is made to make a Presidential detention order such order automatically
supersedes the police detention; finally, if no decision has been made within twenty-eight
days of the commencement of the police detention, the person must be released. In none of
these four cases can I see any necessity for a document purporting to revoke the order to
detain, even if that order had - unnecessarily as I believe - been reduced to writing. In my
view the legal position would be precisely the same if, while the appellant was in detention
under the police detention order, he had been served with a Presidential detention order.

Mr Annfield argues that on the facts as disclosed in the affidavit the appellant was physically
in custody from the 9th July, and that he remained so until the service on him of the
document purporting to revoke the police detention order, whereupon he was immediately
rearrested and served with Presidential detention order. Mr Annfield submits that the
position might have been different if the appellant had been released from his place of
detention following the revocation of the police detention order and then immediately
re-arrested and re-detained, but that on the facts as they actually occurred he was never
out of detention even momentarily, and that consequently his detention must be regarded
as continuous from the commencement of the police detention. I think Mr Annfield is wrong
when he says that the appellant was never out of detention even momentarily; I think that
during the few seconds between the revocation - assuming that this was effective in law and
not simply a nullity - and the subsequent arrest and service of the Presidential detention
order, the appellant although physically within the precincts of the place of detention, was
not in detention. But for the reasons I have developed above I propose, in the appellant's
favour, to ignore the purported revocation and to deal with the matter as if the Presidential
detention order had been served on the appellant whilst he was still in detention under the
police detention order.

A person may be deprived of his liberty by virtue of a host of different authorisations. In

the present case the appellant was deprived of his liberty by a police officer "pending
decision whether a (Presidential) detention order should be made against him"; thus the
detaining authority was the police officer and the purpose of the detention was in order to
make inquiries as to whether there were grounds which would justify the making of a
Presidential detention order. Subsequently, as a result presumably of such inquiries, the
President was satisfied that for the purpose of preserving public security it was necessary to
exercise control over the appellant and he consequently made the Presidential detention
order; thus the detaining authority in that case was the President and the purpose of the
detention was to exercise control over the appellant for the preservation of public security.
Regulations 33 (6) and 33 (1) are thus quite distinct; in the one case the detaining
authority is a police officer, the period of permissible detention is limited to twenty-eight
days and the purpose is to make inquiries; in the other case the detaining authority is the
President, the period of permissible detention is unlimited and the purpose is to exercise
control for the preservation of public security. These provisions and the resulting detentions
are, in my view, quite distinct; in particular, the relationship between sub-regs (6) and (1)
demonstrate, as I have shown, that there are four ways in which a police detention may
come to an end and that in only one is it superseded by a Presidential detention.

The learned trial judge considered the case of In re Cain (4), where on the particular facts
Doyle, C.J., said:

"In the instant case I have no doubt that these two orders by the same detaining
authority and for the same reason must be treated as one continuing detention. I find that
the applicant had been in detention for the purpose of Section 27 (1) (a) for a period
exceeding 14 days before the grounds were served and in consequence his continued
detention after that period of 14 days is unlawful."

The learned judge then quoted the comments on that dictum by Cullinan, J., in the case of
Seegers v Attorney - General (5):

"In the particular circumstances of the case of In re Cain at p. 78, Doyle C.J.,
regarded detention under two succeeding Presidential detention orders effected for the
same reason as one continuing detention. The circumstances of this case are quite different.
The duration of detention under the police order depended upon the making of a
Presidential detention order and could not in any event have exceeded 28 days. The fact
that the Presidential detention order must then have had the effect of revoking the police
order before the 28 days had elapsed cannot support the contention that it continued the
detention. There is no power to continue detention initially effected under a police order; it
automatically terminates after 28 days. The purpose of a police order is to provide in an
emergency an opportunity for the making of a detention order as such. I agree with Mr
Fernando that the two orders in this case were made by two different authorities under two
different sub-regulations in the exercise of two completely different powers. Despite the fact
that the applicant was it seems at all times in custody, I hold that the Presidential detention
order did not effect a continuing detention."

The learned trial judge expressed himself to be in complete agreement with the above
observations. I also am in agreement, save that I think the purposes of a police order are
too narrowly stated.

In the result, in my view the learned trial judge was right in holding that the Presidential
detention order was separate and distinct from the police detention and that the Presidential
order cannot be attacked on the basis of any unlawfulness in the police detention. I would
dismiss the appeal on the merits.

The appellant appealed also against learned trial judge's order that he pay the respondent's
costs. Mr Annfield cited in both the court below and this court the following passage from
the judgment on costs of Doyle, C.J., in Kapwepwe and Kaenga (3):

"Although in the result the court has not found great difficulty in the point of law in
issue, it was a constitutional point of very general importance being raised for the first time.
The judgment of the court will be of assistance both to the detaining authority and to any
persons subject to detention or restriction orders in the future.
The appellants are detained without trial under exceptional powers. It would not be
in the interest of justice that such persons should be deterred from raising reasonable legal
points as to the validity of their detention by fear of the costs that might be incurred. While
the question of costs is a matter for the judicial discretion of the court in each case, and
clearly an unsuccessful appellant is less likely to escape an award of costs than an
unsuccessful party at first instance, we consider that in all the circumstances of this case,
justice will be served by each party bearing his own costs both here and below."

The learned trial judge pointed out, as indeed the foregoing passage reaffirms, that the
question of costs in every case, whether or not a case involving fundamental rights, is
discretionary. He continued:

"Cases of detention where an application for habeas corpus has been made have
been before the courts in Zambia on several occasions. I find nothing new raised for the
first time by the facts of this application."
I do not think this last comment was correct. The learned trial judge specifically declined to
rule on the question whether the appellant's police detention became unlawful by reason of
the failure to furnish grounds, preferring to limit his decision to the question whether or not
the Presidential detention was separate and distinct; but the other question was certainly
raised and has not been the subject of an authoritative decision, and in this court Mr
Kasonde specifically invited us to make a decision on the issue for the guidance of both the
police and the courts.

In my view the afore-recited dictum of Doyle, C.J., is absolutely in point in the present case;
equally here we have not found great difficulty in the points of law in issue, but one of them
certainly was a constitutional point of general importance being raised for the first time
(although Doyle, C.J., in In re Cain (4) made reference to it, expressly obiter, at the
conclusion of his judgment).

I think justice will be served in this case also by each party bearing his own costs both here
and below, and I would so order.

Judgment

GARDNER,J.S.: I concur with the judgment of the learned Deputy Chief Justice and with the
proposed order as to costs.

Judgment

BRUCE-LYLE,J.S.: I also concur.

Judgment

BARON,D.C.J.: The appeal against the refusal of the application is dismissed. Each party will
pay his own costs, both here and below.

Application dismissed

LOVEMORE MUSONGOLE v THE PEOPLE (1978) Z.R. 171 (S.C.)

SUPREME COURT
BARON, D.C.J., CHOMBA AND BRUCE-LYLE, JJ.S.
21ST FEBRUARY, AND 18TH MAY, 1978
(S.C.Z. JUDGMENT NO. 21 OF 1978)

Flynote

Evidence - Corroboration warning - Absence of - Whether proviso should be applied.

Criminal law and procedure - Appeal - Misdirection by trial court - Application of proviso of
s. 15 (1) of Supreme Court of Zambia Act, 1973 - Test for.
Headnote

The facts appear from the judgment.

It was argued on behalf of the appellant that the trial magistrate had been guilty of certain
misdirections, and in particular that no corroboration warning had been given, and that such
cases on the authority of R. v Trigg (1) should not be made the subject of the application of
the proviso. The court accepted that there had been misdirections and that the conviction
could stand only if the proviso could be applied.

Held:
(i) It is settled law that in a proper case notwithstanding that no warning as to
corroboration has been given when it should have been given a conviction
may be upheld; the question in each case is whether the evidence meets the
test for the application of the proviso.

Butembo v The People (3) followed; R. v Trigg (1) disapproved.

(ii) On the facts the evidence was of such weight as to meet the test for the
application of the proviso laid down in Emmanuel Phiri and Others v The
People (5).

Cases cited:

(1) R. v Trigg (1963) 47 Cr. App. Rep. 99.

(2) R.v Midwinter (1971) 55 Cr. App. Rep. 647.
(3) Butembo v The People (1976) Z.R. 193.
(4) R. v Lewis [1947] 4 All E.R. 360.
(5) Phiri (E) and Ors v The People S.C.Z. Judgment No. 1 of 1978.

Legislation referred to:

Penal Code, s. 137.

For the appellant: S.S. Ezugha, Ezugha & Company.

For the respondent: K.R.K. Tampi, State Advocate.

Judgment

BARON, D.C.J.: delivered the judgment of the court.

The appellant and another man were convicted of indecent assault on a female contrary to
s. 137 of the Penal Code. On an evening in August, 1976, the complainant was drinking at a
bar in Kitwe; also drinking in the bar the same evening were the appellant, his co-accused
and a third man who was PW2 at the trial. There was a conflict of evidence as to whether
the complainant had actually been drinking with these three men; she denied it. It was
however common cause that when the bar closed the complainant was given a lift by PW2
along with the appellant and his co-accused and one or two other men. PW2 stopped at two
garages for petrol and oil and then proceeded. The complainant realised that the car was
not travelling in the direction she wished to go and when it reached a certain bus stop she
persuaded the driver to stop on the pretext that she wished to relieve herself. Thereafter
she refused to get back into the car. At this point the complainant's evidence and that of the
defence are in sharp conflict.

PW2 said that the appellant and his co-accused told PW2 to take the other passengers to
their homes and come back and that PW2 duly drove off. The complainant said that she was
then dragged into the bush and that the two men attempted to rape her and that she
struggled and cried out and that she was only saved from being raped by the appearance on
the scene of PW3, a miner who was on his way home (this witness made no mention of a
vehicle at the scene). The appellant on the other hand said that while the car was stationary
at the bus stop another car pulled up containing three men one of whom called out to the
complainant who went over to that vehicle and then called the appellant in order to meet
her brother; the appellant went to the other vehicle and was told that they were taking the
complainant away. He thereupon got a lift in another vehicle and went home.

The appellant's co-accused elected to remain silent and called no witnesses.

During the cross-examination of the prosecution witnesses the only reference to this other
car was during the cross-examination of PW2; he said in response to a question, not by the
appellant but by his co-accused, who was the second to cross-examine, that when he
stopped his vehicle another vehicle stopped behind them. It is highly significant however
that neither accused at the trial cross-examined the complainant as to this other car, and in
particular that one of the occupants thereof was her brother and that she remained with
those men while the appellant left.

Mr Ezugha, on behalf of the appellant, submitted that the learned magistrate had
misdirected himself in failing to warn himself of the dangers of convicting in the absence of
corroboration of the complainant's evidence as to the identity of the culprits, and he
submitted that on the authority of R. v Trigg (1) and R. v Midwinter (2) the proviso should
not be applied. We are by no means satisfied that the learned magistrate misdirected
himself in this regard; it is quite clear - and indeed the judgment says so in terms - that the
magistrate was alive to the danger of deliberate false implication. But it is not entirely clear
that the magistrate then proceeded to look for corroboration of the complainant's evidence
as to identification, and since the judgment can be read in this way we propose in favour of
the appellant to read it as omitting both a corroboration warning and a search for
corroboration. There was in addition a clear misdirection on the facts when he said that the
two accused had not challenged the complainant's evidence that they had dragged her into
the bush and attempted to rape her; this was not simply a passing comment but a point to
which the magistrate obviously attached weight. For these reasons we are satisfied that this
conviction can stand only if the proviso can be applied.

It is convenient to deal at this stage with another submission made by Mr Ezugha, namely,
that the learned magistrate cast a burden of proof on the appellant. The magistrate said:

"If PW1 was indecently assaulted by different people I find no better reason why she
should falsely put the accused persons into trouble. The accused themselves have failed to
suggest any reason why she should falsely accuse them."

We cannot accept this submission; the magistrate is saying simply that he can see no
reason why the complainant should falsely implicate the two accused persons and that they
themselves have not suggested any such reason. This does not cast an onus on the
accused, and on a reading of the judgment as a whole it is clear that the learned magistrate
has not done so.

In support of his argument that the proviso should not be applied in this case Mr Ezugha
relied on the following passage from the judgment of Ashworth, J., in Trigg (1) at p. 101:
 "In principle this court feels that cases where no warning as to corroboration is given
where it should have been should, broadly speaking, not be made the subject of the
proviso to section 4. There are cases where the evidence has been such that this court has
felt it possible to apply the proviso, but those cases, in the view of this court, must be
regarded more as exceptional than as in any sense a regular matter."

We repeat what we said with reference to this passage in Butembo v The People (3):

"We must with respect question the value of using words such as "exceptional" or
"regular matters" in this connection. It is settled law, as indeed Trigg (1) acknowledges,
that in a proper case, notwithstanding that no warning as to corroboration has been given
when it should have been given, a conviction may be upheld."

The question in each case is whether the evidence meets the test for the application of the
proviso. In Butembo (3) we referred to the classic test set out in R. v Lewis (4); since the
decision in Butembo (3) a full bench of this court, after a detailed review of the authorities
including Lewis), has in the case of Emmanuel Phiri and Others v The People (5) made a
definitive pronouncement of the law in this area and has laid down the following test:

"Was there corroborative or supporting evidence of such weight that the conclusion
is not to be resisted that any court behaving reasonably, moving from the undisputed facts
and any findings of fact properly made by the trial court, would, directing itself properly,
certainly have arrived at the same conclusion?"

It is unnecessary to say more about the case of Midwinter (2) save that Mr Ezugha's
reliance on it seems to be based not on anything said in the very short note in the Criminal
Law Review but on the editor's comment, which in turn relies on Trigg (1).

We turn then to consider the evidence in this case and any findings of fact properly made by
the trial court. It is important to note at the outset that on the facts and the nature of the
defence the possibility of an honest mistake does not arise; if the culprits were not the
appellant and his co-accused then the complainant was deliberately lying. Not only was she
in the car with them for some considerable time and actually engaged in conversation with
them after the car stopped at the bus stop - and indeed according to the appellant had sat
drinking with them in the bar - bitt if the offence was actually committed by the occupants
of the car which came on the scene shortly after the appellant's car stopped at the bus stop,
even if the complainant did not know the occupants of that car she certainly must have
known full well that the appellant and his companion had left the scene before the offence.
The learned magistrate was fully alive to the fact that the possibility of false implication was
the only danger in this case, as is clear from the passage from his judgment cited earlier.
We are tempted to agree that it is difficult to see any motive for false implication; that there
was an attempted rape in this case which the complainant was vigorously resisting has been
overwhelmingly proved by the evidence of the complainant herself and the independent
witness PW3, and certainly if the culprits were no more connected with her than the
appellant and his co-accused one cannot see why she should falsely implicate them rather
than the true culprits. But perhaps it is just possible that the complainant might, if the
culprits were a man described as her brother and one of his companions, or alternatively
those two companions, prefer to lay the blame on strangers.

But for other reasons we find it unnecessary to base a decision on this point. The important
features of the evidence are that the appellant and his co-accused were certainly at the
scene immediately prior to the commission of the offence; a rape was certainly attempted;
neither accused even mentioned the second car or the occupants thereof to the complainant
in cross-examination, and the appellant himself suggested for the first time in his own
evidence that the offence was committed by the occupants of that second car. Moreover,
the appellant (who cross- examined first) did not raise the question of this second car even
in cross-examination of PW2, his own friend. In our view it is inconceivable that had the
appellant and his co-accused left the scene and left the complainant in the company of three
other men that they would not have put this to her when she gave evidence; the point was
not one of minor or passing significance, but absolutely fundamental to the appellants case.
If one adds to that the remarkable coincidence that there were three occupants alleged to
have been in that car also and that they are alleged to have acted precisely as the appellant
and his companions acted - i.e. that the one drove the car away and left his two
companions with the complainant - we are satisfied that the learned magistrate was more
than entitled to reject this story of a second car. It follows that since there has been a
proper finding of fact that there were no other men on the scene the question of the
possibility of false implication of one group rather than another does not arise.

For these reasons we are satisfied that had the learned magistrate not misdirected himself
in the respects we have outlined there was corroborative and supporting evidence of such
weight that the learned magistrate, had he directed himself properly, would certainly have
arrived at the same conclusion.

The sentence does not strike us with a sense of shock; if anything it was lenient.

The appeal, against both conviction and sentence, is dismissed.

Appeal dismissed

RODWELL KASOKOPYO MUSAMBA v M. M. SIMPEMBA (T/A ELECTRICAL AND

BUILDING CONTRACTORS) (1978) Z.R. 175 (H.C.)

HIGH COURT
J.H. JEARY, COMMISSIONER
19TH APRIL, 1978
(1974/HP/624)

Flynote

Contract - Breach of contract - Damages - Mitigation - Duly to mitigate loss - Failure to -

Result of.
Contract - Damages - Breach not going to the root of the contract - Whether damages can
be claimed.
Contract - Breach of contract -Special damages -Failure to claim in pleadings - Effect of.
Costs - Award of - Nominal damages awarded - Whether plaintiff "successful for the
purpose of an award of costs.

Headnote

The plaintiff claimed damages for breach of building contract. HE alleged that the defendant
had failed to complete the work within the contract period and in a workmanlike manner.
The defendant denied the allegations, counterclaimed for increased payment and alleged
that the plaintiff should not be awarded any special damages as they were not pleaded. He
was awarded nominal damages, and consequently, for the purposes of costs, he was
considered not a successful plaintiff and was ordered to bear his own costs.

Held:
(i) The award of damages as compensation is qualified by a principle which
imposes on a plaintiff the duty of taking all reasonable steps to mitigate the
loss consequent on the breach, and debars him from claiming any part of the
damage which is due to his neglect to take such steps.

(ii) An employer whose building has defects and omissions not going to the root
of the contract cannot reject the building and claim damages for loss of its
use. He must do what is reasonable to correct the defects and omissions as
soon as reasonably possible and then claim from the contractor the costs so
incurred by him. Such a claim will be a claim for special damages.

(iii) A claim for special damages must be pleaded and if not pleaded they are not
recoverable.

(iv) The ordinary rule is that, where a plaintiff has been successful he ought not to
be deprived of his costs, or, at any rate, made to pay costs of the other side,
unless he has been guilty of some sort of misconduct. In applying the rule it
is necessary to decide whether the plaintiff really has been successful. A
plaintiff who recovers nominal damages is not necessarily "successful".

Cases cited:

(1) British Westinghouse Co. v Underground Railways Co. [1912] A.C. 673 and 689.
(2) Hoonig v Isaacs [1952] 2 All E.R. 176.
(3) Ilkiw v Samuels [1963] 2 All E.R. 879.
(4) Anglo Cyprian Agencies v Paphos Wine Industries [1951] 1 All E.R. 873.

For the plaintiff: A.R. Lawrence of Solly Patel, Hamir and Lawrence.
For the defendant: M. Lwatula of Ellis and Company.

Judgment

JEAREY, COMMISSIONER: This is a claim for damages for breach of a building contract
brought by the plaintiff as employer against the defendant as contractor. By the statement
of claim which was delivered as long ago as December, 1974, the plaintiff claimed that the
defendant failed to complete the work within the contract period and in workman like
manner. No particulars were given in the statement of claim or other wise as to the items of
work which were not completed or which were defective (and I presume none were sought
by the defendant) and the only special damages claimed were loss of rent at K200 per
month from December, 1973.

By his defence the defendant admitted the contract, asserted that the delay in completing
the work was due to the failure of the plaintiff to supply adequate drawings and
instructions including, inter alia, particulars as to the method of waste disposal, and denied
that the work was not done in workmanlike manner. The defence also contained ant
allegation that the plaintiff has failed to mitigate any loss or damage and counter claim for
increased cost of materials.
This being the state of the pleadings the court has been left to deduce from the evidence
presented what are the real issues in dispute between the parties. In opening his case for
the plaintiff Mr Lawrence stated that these issues were:

(1) the provision of waste disposal facilities for the building;

(2) the defendant's failure to hand-over the keys to the plaintiff; and
(3) the defendant's claim for increased costs.

However, it transpires from the evidence that there are two other issues. Firstly, the plaintiff
says that the building constructed had a crack or cracks in the wall or walls and, secondly,
he says the defendant failed to install certain air bricks.

The major part of the evidence presented related to the provision of water disposal facilities
and I will therefore deal with this aspect first. As will become clear, the evidence on this
issue diverged in some respects from the pleadings but since it was led without objection
from counsel on either side I admitted it.

Waste disposal

The plaintiff's case on this issue was, basically, that by the terms of the contract either as
originally entered into or as subsequently varied the defendant was obliged to construct a
septic tank to treat effluent from the building, which he failed to do. Clause l of the contract
reads as follows:

"The Contractor for the consideration hereinafter mentioned shall at his own risk
within the space of sixteen weeks in good and substantial and workmanlike manner erect
and build: Grocery Shop (1), main shop (1), office (1), passage (1), small room (1), PK (1),
storerooms and plus counter and verandah, at Old Kabwata on stand 26, for the
consideration of this contract the work shall be deemed to have commenced from the date
of actual handing over of the site to the contractor's representative including electric
installations." (I have corrected certain spelling or typing errors.)

There is no specific reference here to a septic tank but the clause was obviously intended
only to be a general description of the work and is not exhaustive. Clause 2 of the contract
reads:

"The work shall be supervised and approved on behalf of the employer by a works
Supervisor appointed by the employer, and shall be carried out to the reasonable
satisfaction all in accordance with the drawing, specifications, schedule of materials the
Contractor shall not vary from the drawings, specification, schedule of materials or other
document handed over to Contractor without written approval of the employer and
Contractor to such variation the works supervisor shall have no authority to order or
approve any variation without approval of the employer."

The drawings referred to in this clause are not identified in the contract but it was common
cause that these drawings were exhibits P3 and P7. Neither of these drawings in their
present state show a septic tank but there is a deletion on the top left hand corner of exhibit
P3 which the court was told is relevant to this issue and it is therefore necessary to recount
the sequence of events. The plaintiff''s plot on which the building was erected (Stand 26 Old
Kabwata) measures 25 feet by 60 feet. The building as designed by the plaintiff''s architect,
Mr Silungwe, who gave evidence for the plaintiff, measured 25 feet by 58 feet.
Mr Silungwe said, and his evidence was not challenged on this point, that when he originally
designed the building he provided for a septic tank and soakaway in the top left hand corner
of exhibit P3. When he presented this for approval to the Lusaka City Council it was pointed
out to him that the septic tank and soakaway extended over the rear boundary of the
plaintiff''s plot and encroached on the Council's sanitary lane reserve and that the Council
could not approve this. He was further told that the Council intended to construct a trunk
sewer in the sanitary lane reserve and he therefore deleted the septic tank and soakaway
from exhibits P3 and P7 and substituted a manhole or inspection chamber for the purpose of
access to a sewer connection. This manhole was situated on the 2 foot strip between the
rear wall of the building and the rear boundary of the plot. The Council then approved the
amended drawings.

The plaintiff in his evidence said that after the drawings had been approved by the Council
he then entered into the building contract with the defendant and gave the approved plans
to the defendant.

On the plaintiff''s own evidence therefore it is quite clear that the defendant was not obliged
by the original contract to construct a septic tank and soakaway but only to provide for a
sewer connection.

The Lusaka City Council did not in fact construct the trunk sewer and still had not done so at
the date of the trial. Without an adequate means of waste disposal the plaintiff could not
obtain an occupation certificate for the building and therefore could not go into occupation.

The plaintiff then made further representations to the Lusaka City Council and in April,
1974, the City Engineer gave the plaintiff permission to construct a septic tank and sewer in
the sanitary lane reserve area at the rear of his plot as a temporary measure on condition
that the building should be connected to the sewer as soon as this was constructed. At this
stage the defendant had been off the site for approximately five months, the building having
been completed (according to him) in November, 1973.
Here the sequence of event becomes confused. The plaintiff:'s case, as I understand it, is
that he then called on the defendant to construct the septic tank and soakaway, and when
he failed to do so, the plaintiff engaged another contractor.

The other contractor was TARA Jobbing and the plaintiff put in evidence a receipt (exhibit
P8) from that firm for K1,650 paid by the plaintiff dated 31st May, 1974, and an invoice
(exhibit P6) dated 29th June, 1974. This invoice reads as follows:

"date 29/6/74
to R. K. Musamba Esq.
Box CH117
Lusaka

Stand 26 Kabwata
(1) Install complete soakaway septic tank ..